judgement:
Appeal No. 501 of 1966.
Appeal by special leave from the judgment and order dated October 23, 1964 of the Mysore High Court in Writ Petition No. 1985 of 1963.
H. R. Gokhale, A. N. Sinha and D. N. Gupta, for the appellants B. R. L. Iyengar, Bisliamber Lal and H. K. Puri, for respon dent No. 1.
The Judgment of the Court was delivered by Vaidialingam, J.
This appeal, by the Management concerned, by special leave is directed against the judgment of the Mysore High Court, dated October 23, 1964, dismissing Writ Petition No. 1985 of 1963, and declining to issue a writ of prohibition,, restraining the, second respondent, the Industrial Tribunal, Bangalore 1 from proceeding with the adjudication, in 1.
D. No. 8 of 1963.
The short facts, leading up to the State of Mysore, making the reference, which is the subject of adjudication, by the second respondent, in I.D. No. 8 of 1963, are as follows: The appellant is a textile mill, in Bangalore, manufacturing cotton, silk and cotswool piece goods.
After the (Act XX of 1946) (hereinafter to be referred to, as the Standing Orders Act), came into force, the standing orders of the appellant 's establishment were duly drawn up, and certified by the authorities.
Those standing orders, among other things, related to the question of leave, to, be granted 583 to the workmen.
By its order, dated August 2, 1955, the Government of Mysore referred to the Industrial Tribunal, Bangalore, for adjudication, an industrial dispute, raised by certain categories of workmen, of the appellant company.
That reference was numbered as I.C. No. 11 of 1955.
The dispute that was referred, was "Whether the Standing Orders filed by the Management and now certified by the certifying authority be modified as a modification to the existing Standing Orders as amended by the employees through their association in the light of the views and as indicated in the Annexure to this notification".
The Industrial Tribunal, Bangalore, made an award, Exhibit M 6, on September 25, 1956, whereby the Tribunal directed the addition of certain clauses, in the Certified Standing Orders of the appellant company.
There is no controversy, that paragraphs 50 to 70, of Exhibit M 6, deal with privilege leave, sick leave and casual leave, which could be availed of, by the workmen.
Exhibit M 5 is a copy of the Certified Standing Orders of the Management company.
After the amendments, effected to those Standing Orders, in pursuance of the award, Exhibit M 6, clauses 1, 2, 3 and 4, of Order 9, of Exhibit M 5 deal with festival holidays,.
leave with wages, medical leave and casual leave, respectively.
The award, Exhibit M 6, after publication in the State Gazette, on October 18, 1956, came into operation on November 18, 1956, under the provisions of section 19(3), read with section 17A(1), of the (Act XIV of 1947) (hereinafter referred to, as the Act).
The first respondent began to make certain claims, for revi sion of the provisions, regarding leave, and as the appellant was not willing to concede those.
claims, the first respondent appears to have approached the State Government, to refer the dispute, regarding this matter, to the Tribunal, for adjudication , but, the State Government, by its order, Exhibit M 2, dated October 10, 1962, declined to refer the matter for adjudication.
In the said order, the Government is of the view that, as compared with leave facilities, provided for, in similar major industries, in Bangalore, the leave facilities then granted by the Management to the workmen of the appellant company, cannot be considered to be inadequate, and, therefore, the issue raised, by the workmen, does not merit reference, for adjudication.
But, nevertheless, later on, the State Government, referred for adjudication, by its order, dated March 20, 1963, the following matters, to the second res pondent: "Whether the workmen of Bangalore Woollen, Cotton & Silk Mills Co. Ltd., are entitled to the following leave benefits: (a) Privilege leave for one month in a year with pay.
584 (b) Casual leave of 12 days in a year with pay.
(c) Sick leave of 30 days in a year with full pay less E.S.I. benefits.
If not, to what reliefs they are entitled to" This reference, out of which the present proceedings arise, was registered as I.D. No. 8 of 1963.
From the questions, referred to above, it will be seen that the dispute, that was referred, for adjudication almost exclusively relates to the question of privilege leave, casual leave, and sick leave, which are already provided for.
in the Standing Orders, of the Management, Exhibit M 5.
The first respondent has placed its demands, in respect of this question, before the Industrial Tribunal, and the Management have also placed their points of view, on these matters.
It is not necessary to refer to the pleas made, either by the appellant ,or the first respondent, regarding the merits of the claim, which has not been adjudicated, by the Industrial Tribunal.
But the Management raised two preliminary objections, to the jurisdiction, of the Industrial Tribunal, to entertain and adjudicate upon the questions, referred by the State Government.
Those two preliminary objections were to the effect: (i) The award, Exhibit M 6, dealing with leave and other facilities, not having been terminated by the first respondent, by issue of a notice, as contemplated under section 19(6) of the Act, continues to be in force and, therefore, the question of leave cannot form the subject matter of adjudication.
(ii) The question regarding leave facilities, having been provided for, in the Certified Standing Orders, framed by the company under the Standing Orders Act, any modifications to those provisions, as is now sought to be done, can only be in the manner provided for, in the Standing Orders Act, and cannot form the subject of adjudication, by the Industrial Tribunal, under the Act.
The Workers ' Union met these contentions by stating that the various representations, made by it, to the Management.
as well as the presentation of a Charter of Demands, amounted to notice of termination of the Award and that, notwithstanding the Standing Orders Act, when an industrial dispute was raised, regarding matters which might be covered by the Standing Orders of the Management, by the workmen and such a dispute was referred,.
for adjudication, under the Act, by the Government concerned, the Tribunal had full jurisdiction to adjudicate upon that dispute.
These two questions have been answered, by the Industrial Tribunal, against the Management, by its order, dated August 26, 1963.
The High Court, in its order under attack, has also agreed 585 with the findings, recorded by the Tribunal.
In considering the first objection, both the Tribunal and the High Court have gone into the question as to whether the notice, contemplated under section 19(6) of the Act, should be in writing, or, whether it can be ,oral, and have expressed the concurrent view that such notice can be oral also; but the ultimate finding, recorded by the Tribunal, and accepted by the High Court, is that the various correspondence, that passed between the Management and the Union, will clearly show that the Union has terminated the Award.
On .the second objection the Tribunal, whose findings have, again, ,been accepted by the High Court, has held that the scope of the Standing Orders Act is very limited, and that there is really no conflict, between the Act and the Standing Orders Act.
It is the further view of the Tribunal that, in spite of the provisions, contained in the Standing Orders, framed by the company, under the provisions of the Standing Orders Act, it is nevertheless open to a Tribunal, to adjudicate upon those matters, when the question is referred to it, as an industrial dispute, under the Act.
In this appeal, on behalf of the Management, Mr. H. R. Gokhale, learned counsel, has raised the same two contentions, relating to the jurisdiction of the Industrial Tribunal to adjudicate upon the dispute, in question.
In respect of the first objection, that the award, Exhibit M 6, has not been terminated by a written notice, under section 19(6) of the Act, counsel urged that the views, expressed by both the Tribunal, and the High Court, that there could be a notice, given even orally terminating the award, is not correct.
No doubt.
the findings, in this regard, that there can be an oral notice, given under section 19(6) of the Act, has been sought to be supported, by Mr. B. R. L. Iyengar, learned counsel, appearing for the Union.
In our opinion it was not really necessary either for the Tribunal or for the High Court, to embark upon, and express an opinion, on the question, as to whether the notice of termination of an award, under section 19(6), of the Act, can be oral, because.
so far as we can see, the Union has not raised any plea that the termination of the award, Exhibit M 6, in this case, has been brought about, by its giving an oral notice to the Management.
On the other hand, the specific plea of the Union, on this aspect, was that the various representations, made by it, to the Management, as well as the presentation of the Charter of Demands.
amounted to a notice of termination of the award.
The various representations and the Charter of Demands, referred to, by the Union, are the representations and charter given in writing, to the Management, on various matters.
Therefore, we express no opinion, on this case, as to whether the termination of an award, can be brought about by an oral notice being given, under section 19(6), of the Act.
We will then consider the _question, as to whether there has been a termination of the award, Exhibit M 6, in the manner pleaded by the Union.
It cannot be over emphasized that an 586 intimation, claimed to have been given, regarding the termination of an award, must be fixed with reference to a particular date, so as to enable a Court to come to the conclusion that the party, giving that intimation, has expressed its intention to terminate the award.
Such a certainty regarding date, is absolutely essential, because, the period of two months, after the expiry of which, the award will cease to be binding on the parties, will have to be reckoned, from the date of such clear intimation.
It is also necessary to state that, in this case, the High Court and the Tribunal, have proceeded on the basis that the decision of this Court, in The Workmen of Western India Match Co. Ltd. vs The Western India Match Co. Ltd.(1), supports the proposition that an inference of an intention to terminate an award or a settlement, can be gathered from the various correspondence that passed, between the Management and the Union.
That decision, in our opinion, does not lend any support to such a view.
From the facts of that case, it is seen that there was a settlement, between the parties, on April 29, 1955, and there was a Charter of Demand, given by the workmen, on January 25, 1957.
On January 14, 1953, the Government of West Bengal referred, to the Industrial Tribunal concerned, for adjudication the demands made by the workmen.
Earlier to that date, on March 29, 1957, the management had sent a reply to the Union that the Charter of Demands, of January 25, 1957, could not be considered, inasmuch as the settlement of April 29, 1955, had not been validly terminated, under the Act.
In answer to that communication, the Union wrote, on April 8, 1957, that the various representations, made by it, to the management and the representation of the charter of demands, amounted to a notice of termination of the settlement.
In dealing with this point, it will be seen that this Court observes that no formal notice, as contemplated by section 19(2), of the Act, has been given by the Union.
But, this Court, ultimately, held that though no such formal notice was given, the letter of April 8, 1957, written by the Union, could itself be construed as notice, within the meaning of section 19(2), and therefore the Tribunal had jurisdiction to adjudicate upon the claim, as the reference was made, by the State Government, long after the expiry of two months, from April 8, 1957.
It will therefore be seen, that this Court treated the letter, of April 8, 1957, written by the Union, as amounting to a notice of intention to terminate the settlement.
in the instant case, we specifically desired Mr. lyengar, counsel for the Union, to state which was the particular letter, or representation, made by the Union, which could be considered to amount to a notice of termination of the award.
Learned counsel stated that he relied upon the letter, dated June 26, 1961, written by the Union, to the Management, as amounting to a notice, given by his client, intimating its intention to terminate the award, Exhibit M 6.
In view of this stand, taken by the counsel for the Union, we are not referring to the events that took place, subsequent to this ; 587 date, viz., June 26, 1961, excepting to state that, ultimately, the State Government, referred the present dispute, for adjudication, to the Industrial Tribunal.
We have already stated that the award, in I.C. No. 11 of 1957, remained in operation, till November 18.
1957, under section 19(3), of the Act, but notwithstanding the expiry of the period of operation, of the award, under sub section
(3), the said award will continue to be binding on the parties, unless it is terminated, in accordance with section 19(6), of the Act.
Even during the period, when this award was in operation, i.e., within; November 18, 1957, the workers made certain demands, as mentioned in their letter, dated October 28, 1957.
The demands referred to, in the said letter.
related to various claims.
made by the Union.
In particular, item 3, of Annexure A, to the said letter, related to certain claims, made by the several employees, regarding privilege leave and casual leave.
On September 19, 1958, there was a settlement, arrived at, between the parties, under Exhibit M 3.
It is only necessary to note clause 5 of this agreement, whereby the Staff Association withdrew the demands, in respect of the various claims, made on October 28, 1957, including the claim made, for privilege leave and casual leave.
The Staff Association also agreed that, for a period of three years, commencing from January 1, 1958, they would not raise any dispute regarding any of the subjects covered by Annexure A to their original demands, which included also the claim for privilege leave and casual leave.
No doubt there is a reservation, regarding gratuity,.
with which we are not now concerned.
Therefore, it will be noted that though a claim was made, in respect of leave, on October 28, 1957, the Union withdrew that claim, under the agreement, M 3, and they also agreed not to make any demands, for three years.
This is a settlement, arrived at.
by the parties, and this settlement will be binding on them.
unless it is terminated.
in accordance with section 19(2) of the Act.
On August 1.4, 1961, the Union issued a notice, Exhibit W 3 to the Management, under section 19(2) of the Act, stating that the settlement, of September 19, 1958, will stand terminated, and cease to be binding, after the expiry of two months.
from the date of receipt of that letter, by the Management.
it is in between September 19, 1958, the date of the settlement M 3 and August 14, 1961, the date of the notice W 3, terminating the settlement, that the letter, dated June 26, 1961, relied on by Mr. Iyengar, as amounting to a notice of termination of the award, %,as sent by the Union.
No doubt, in this letter, the Union has, among other matters, claimed leave facilities.
as stated therein.
That claim related to privilege leave, casual leave and sick leave.
Even this letter does not, as such, intimate the Management, of the Union 's intention to terminate the award, Exhibit M 6.
Mr. Iyengar.
learned counsel, urged that the very fact that the Union has made claims, in this letter, regarding leave facilities which are inconsistent with the award , Exhibit M 6, will clearly show that the Union is not standing by the award.
From the facts.
mentioned 588 above, it will be clearly seen that the parties have entered into a settlement, on September 19, 1958, and one part of the agreement is that the Union is withdrawing its claim regarding leave facilities and it has also agreed not to raise any disputes, regarding that matter, for a period of three years.
This settlement is binding,on both the Management and the Union, and will continue to be binding, until it is terminated, in accordance with section 19(2),of the Act.
Notice of intention to terminate the settlement was given on August 14, 1961, and, under section 19(2) of the Act, the settlement will cease to be binding, after the expiry of two months, i.e., on October 14, 1961.
This letter, written on June 26, 1961, long before the issue of the notice, on August 14, 1961, terminating the settlement, under section 19(2), is, in our opinion, of no avail.
Unless the settlement is terminated, the Union had no right to make any demands regarding leave facilities*, as it has purported to do, on June 26, 1961.
Therefore, in our opinion, this letter cannot be considered to be a notice, given by the Union, expressing its intention to terminate the award.
Apart from the fact that :it does not convey any such intention, it is also invalid, inasmuch as it has been given, even before the settlement was terminated.
From this, it will follow that when there is a subsisting award, binding on the parties, the Tribunal will have no jurisdiction to consider the same points, in this reference.
Normally, this conclusion, arrived at, by us, may be enough to dispose of this appeal , but the second question, relating to the jurisdiction of the Tribunal, functioning under the Act, to adjudicate upon a dispute, which may result in the modification of the Standing Orders.
framed by the management.
under the Standing Orders Act, has also been adjudicated upon by the Tribunal, and the High Court and the correctness of those findings, have been canvassed.
before us.
If, later on, there is a proper reference to the Tribunal, the same questions may arise, for consideration; and therefore.
we shall proceed to express, our views on that aspect also.
The contention of Mr. Gokhale.
learned counsel for the appellant, is that the Management, after the coming into force of the Standing Orders Act, had framed standing orders which have been certified, by the Certifying Officer.
Those Standing Orders, originally framed, made provision for the grant of privilege leave, sick leave, casual leave and other allied matters.
The Award, Exhibit M 6, dealt with the claim of the workmen, in this regard, and gave certain directions.
Those directions have been incorporated, by the Management.
by amending the Standing :Orders and the provisions regarding leave.
, are all to be found in those Standing Orders Exhibit M 5.
The Standing Orders Act, as the various provisions therein will show, is a self contained statute, imposing obligations on the Management and also conferring rights.
on the parties concerned.
for the framing of and ,,effecting modifications, in the Standing Orders.
The manner in 589 which the modification is to be sought, is also indicated, in the Act.
In this connection, learned counsel referred us to the interpretation, placed upon item 5, in the Schedule to the Standing Orders Act, by this Court, in The Bagalkot Cement Co. Ltd. vs R. K. Pathan(1), that it is open, to the authorities functioning under the Standing Orders Act, to make substantive provisions for the granting of leave and holidays, along with conditions in respect of them.
Mr. Gokhale pointed out that the Standing Orders Act placed an obligation, on the management, to have the Standing Orders certified; it imposes a duty on the Certifying Officer and the Appellate Authority, to adjudicate upon the reasonableness and fairness of the Standing Orders , a right has been given.
both to the workmen, and the management, to apply to the Certifying Officer to have the Standing Orders modified; there is provision for appeals; penal provisions are provided, for failure to submit draft standing orders, or for modifying standing orders, otherwise than in accordance with section 10; and, finally, jurisdiction is given under section 13 A, to the Labour Court, constituted under the Standing Orders Act, to entertain any dispute that may be referred to it, by the employer or workman, regarding the application, or interpretation of a standing order.
These provisions, according to the learned counsel.
clearly show that the Standing Orders Act is a self sufficient statute.
by if any provision made.
in respect of leave.
in any Standing Orders,. requires modification.
the only procedure to be adopted by the party concerned.
is as indicated in the Standing Orders Act.
In respect of all matters which are to be so dealt with.
regarding industrial establishments.
to which the Standing Orders Act applied, the Industrial Tribunal, constituted under the Act, will have no jurisdiction to entertain a claim or adjudicate upon the same.
When two statutes.
as in this case.
the Act and the Standing Orders Act, more or less deal with some common matters, the proper and reasonable view to hold will be that the Act can be invoked only in respect of industrial establishments which are not governed by the Standing Orders Act.
Mr. Gokhale also pointed out that under such circumstances, the remedy to be adopted is the one, under the Standing, Orders Act; and this is also to be deduced from the views, expressed by this Court.
in certain deci sions, to which he has drawn our attention.
Mr. lyengar, learned counsel for the Union, on the other hand, points out that the Act and the Standing Orders Act.
have been enacted for different purposes; the scope of an adjudication, under the Standing Orders Act, counsel points out, is only regarding the fairness or reasonableness, of standing orders.
The Standing Orders, certified under the Standing Orders Act, are no doubt binding on the parties and, in individual cases, it may be possible for a workman to apply for a modification of a particular Stand (1) [1962] Supp. 2 S.C.R. 697.
590 ing, Order or raise a question, regarding the application or interpretation of a Standing Order, and refer it to the Labour Court.
But, counsel points out.
that does not mean that there cannot be a larger question, by way of an industrial dispute.
raised by the Union, or the workmen, as a body, concerned, which will necessitate an adjudication, by the Industrial Tribunal, under the Act.
In this connection, counsel drew our attention to the fact that the Act and the Standing Orders Act, were amended by a common Act the Industrial Disputes (Amendment And Miscel laneous Provisions) Act, 1956 (Act KXXVI of 1956).
This Amending Act made provision for, adjudication, by the certifying authority and the appellate authority under the standing Orders Act, ,Upon the reasonableness and fairness of standing orders.
It made :a provision, giving a right to a workman also to apply to the Certifying Officer, to have the standing orders modified.
Section 13A, regarding reference being made to the Labour Court, by a workman or an employer, in respect of the application, or interpretation of a standing order, was also incorporated, by the Amending Act.
Side by side with these amendments, made to the Standing Orders Act, various amendments were effected, in the Act also.
Provisions regarding the constitution of the Labour Court, as well as the Industrial Tribunals, and matters over which they have jurisdiction, as enumerated in the particular Schedules to that Act, were also made.
An adjudication, made by the Labour Court, or the Industrial Tribunal, is binding on the parties, referred to, in section 18 of the Act.
No doubt section 13A, of the Standing Orders Act, enables an employer or a workman, to refer to the Labour Court, any question relating to the application, or interpretation, of a standing order.
But the same Amending Act has incorporated, in the Second Schedule to the Act, item 2, relating to 'the application and interpretation of standing orders ', over which the Labour Court has jurisdiction to adjudicate upon. 'Similarly, counsel points out, the Industrial Tribunal, constituted ,under the Act, has been given jurisdiction to deal with matters, referred to, in the Second and Third Schedules to the Act. 'Leave with wages and holidays ' is item 4, of the Third Schedule to the Act, over which jurisdiction has been given only to the Industrial Tribunal.
If the contention of the appellant is accepted, it will mean.
that in respect of a similar question, covered by the standing orders framed by a company, the Labour Court, which is denied jurisdiction, under the Act, will be competent to adjudicate upon the same.
Therefore, counsel points out, that the matters, ,covered by the standing orders, in respect of the various items contained in the Schedule to the Standing Orders Act, can no doubt, be dealt with, in accordance with the provisions contained therein; but a general or a larger controversy regarding those matters, can certainly form the subject of an 'industrial dispute ', as that expression is defined in the Act, and, if that is so, the Industrial Tribunal will have jurisdiction to adjudicate upon those matters, when a reference is made, by the State Government.
591 We are in agreement with the contentions of Mr. Iyengar, on this point.
The scheme of the Standing Orders Act, has been dealt with, by this Court, in three of its reported decisions: Guest, Keen, Williams, Private Ltd. vs P. J. Sterling(1); The Bagalkot Cement Co. Ltd. vs R. K. Pathan(2); and Salem Electricity vs Employees( ').
Therefore, we do not think it necessary to cover the ,around over again.
Those decisions have also noted the amendments effected to the Standing Orders Act, by the Amending Act XXXVI of 1956.
Those are the decisions, which have been referred to, by Mr. Gokhale, in support of his contention that the observations made, therein, will show that after the amendment of the Standing Orders Act, in 1956, no industrial dispute can be raised, under the Act, in respect of the matters covered, by the Standing Orders Act, and that the remedy of the parties concerned, will only be, as laid down, therein.
On a perusal of those decisions, we do not find that any such proposition, has been laid therein.
On the other hand, we will presently show, that in the latest decision of this Court, the question, as to whether there can be an industrial dispute, raised, which can form the subject of an adjudication, under the Act, has been specifically left open.
In Guest, Keen, Williams, Private Ltd. vs P. J. Sterling(1), the Management had framed standing orders which had been certified, under the Standing Orders Act.
On the basis of those standing orders, certain workmen were voluntarily retired, at the age of 55 years, and the dispute, regarding this matter, was referred to the Industrial Tribunal, under the Act.
The order of the Management was set aside, and reinstatement of some of the workers, was ordered.
An objection was raised, on behalf of the Management, before this Court, that the reference, by the Government, itself, was bad, on the ground that section 7 of the Standing Orders Act makes the standing orders binding, between the employer and his employees, and, till those standing orders, are modified, the parties, will be governed by those standing orders, and the legality of the action, taken by the Management, on the basis of the standing orders, cannot form the subject of a reference, under the Act.
But this Court, after referring to the scheme of the Standing Orders Act, observed that before the Standing Orders Act was amended, in 1956, if the employees wanted to challenge the reasonableness, or fairness of any of the standing orders, the only course was to raise an industrial dispute in that matter, but that this position was altered, by the amendments made, to the Standing Orders Act, by which it bad been made obligatory, on the part of the Certifying Officer, and the Appellate Authority, to adjudicate upon the reasonableness and fairness of a standing order, and a right had been given to the workman also.
to apply (1) ; (2) [1962] Supp. 2 S.C.R. 697.
(3) ; 592 for the modification of any standing order.
This Court further observed, at p. 358: "The standing orders certified under the Act no doubt become part of the terms of employment by operation of section 7; but if an industrial dispute arises in respect of such orders and it is referred to the tribunal by the appropriate government, the tribunal has jurisdiction to deal with it on the merits.
According to Mr. Gokhale, these observations will clearly indicate that the view of this Court is that prior to 1956, the questions regarding standing orders, could form the subject of an industrial adjudication, under the Act, and he wants us to draw the inference that, after 1956, the view of this Court is, that the jurisdiction of the Industrial Tribunal, in such matters, has been taken away.
We are not inclined to accept this contention of the learned counsel, for, this Court, in the above decision, had no occasion to consider the provisions of the Standing Orders Act, in relation to the Act.
In fact, there is no reference at all to the amendments effected in 1956, to the Act.
The next decision is The Bagalkot Cement Co. Ltd. vs R. K. Pathan(1).
In that decision, this Court had to consider, again, the effect of the Standing Orders Act, prior to its amendment, in 1956.
No doubt the amendments, effected in 1956, are also adverted to when considering the scheme of the Standing Orders Act.
In particular, the scope of item 5, of the Schedule to the Standing Orders Act, to the effect 'conditions of, procedure in applying for, and the authority which may grant.
leave and holidays ', came up for consideration.
The contention, on behalf of the Management, appears to have been that the jurisdiction.
conferred on a Certifying Authority, under this clause, does not empower the said Authority to deal with the substantive question of the extent and quantum of leave and holidays.
It was further contended that the said clause only required the Standing Orders to provide for conditions, subject to which, leave and holidays could be granted, as well as the procedure, in respect thereof.
In short, it was contended that the quantum of leave and holidays, to be granted to workmen, was outside the purview of the Schedule to the Standing Orders Act and, as such, they could not be included by the Certifying Officer, or the Appellate Authority, in the Standing Orders.
This contention was rejected, by this Court, and it was held that the substantive provisions, for the granting of leave and holidays, along with conditions in that respect, could be provided for, in the Standing Orders, under cl. 5, of the Schedule.
It will be noted that this decision was also concerned, solely with the question of the jurisdiction of the Certifying Officer and the Appellate Authority, under the Standing Orders Act, in relation to the standing orders, which came up for consideration, before them.
In this decision also this Court did not have occasion to 593 consider whether those matters could form the subject of an industrial adjudication, under the Act.
Mr. Gokhale, no doubt, relied upon the observation, at p.710, to the following effect: "It is not disputed that the claim for leave and holidays can become the subject matter of an industrial dispute and if such a dispute is referred for adjudication to an Industrial Tribunal, the Tribunal can fix the quantum of holidays and leave.
What the Tribunal can do on such reference is now intended to be achieved by the Standing Orders themselves in respect of industrial establishments to which the Act applies.
We have noticed that the Certifying Officer as well as the appellate authority are, in substance, industrial authorities and if they are given power to make provision for leave and holidays as they undoubtedly are given power to provide for termination of employment and suspension or dismissal for misconduct, there is nothing inconsistent with the spirit of the Schedule or With the object of the Act." and attempted to persuade us to hold that in respect of all the matters, covered by the standing orders, exclusive jurisdiction is vested only in the authorities, constituted under the Standing Orders Act.
Though, prima facie, the above observations may appear to give some support to this contention of Mr. Gokhale, in our opinion, those observations must be limited to the question that this Court was considering, in that case, which.
again.
was with reference to the powers of the authorities, under the Standing Orders Act, as well as the rights of the parties, with reference to those standing orders.
But, at any rate, as we shall presently show, in the later decision, the question of jurisdiction of the Industrial Tribunal, in such matters, has been specifically left open.
We then come to the decision of this Court, in Salem Electricity vs Employees(1).
In that case, the appellant had framed standing orders and got them certified, in or about 1947.
under the Standing Orders Act.
In 1960, the appellant made an application, before the Certifying Officer, for amendment of certain standing orders.
By virtue of the proposed amendment, the management wanted to have two sets of standing orders.
to govern the relevant terms and conditions of its employees.
Both the Certifying Officer, as well as the Appellate Authority, declined to modify the standing orders, as desired by the management.
The question that arose for decision was it short one, as to whether the rejection of the application of the management, was justified or not.
This Court, again, considered the scheme of the Standing Orders Act, both before and after its amendment in 1956, and held that in regard (1) L J(N)6SCI 12 594 to the certification of the standing orders, the Standing Orders Act provided for a self contained 'code, and ultimately held that the refusal of the Certifying Officer and the Appellate Authority, to modify the standing orders, was perfectly justified.
Here, again, this Court had no occasion to consider the position of standing orders, framed under the Standing Orders Act, in relation to an industrial dispute that may be raised, and referred for adjudication, under the Act.
In fact, that no decision was intended to be given, on that aspect, is made clear by the learned Chief Justice, when he observes, at p. 506: "It may be that even in regard to matters covered by certified Standing Orders, industrial disputes may arise, between the.
employer and his employees, and a question may then fall to be considered whether such disputes can be referred to the Industrial Tribunal for its adjudication under section 10(1) of the .
In other words, where an industrial dispute arises in respect of such matters, it may become necessary to consider whether, notwithstanding the selfcontained provisions of the Act, it would not still be ,open to the appropriate Government to refer such a dispute for adjudication.
We wish to make it clear that our decision in the present appeal has no relation to that question.
In the present appeal, the only point which we are deciding is whether under the scheme of the Act, it is permissible to the employer to require the appropriate authorities Under the Act to certify two different sets of Standing Orders in regard to any of the matters covered by the Schedule.
" None of the above decisions lend support to the contentions :of the learned counsel for the appellant that, after the amendment .effected in 1956, to the Standing Orders Act, the Industrial Tribunal will have no jurisdiction, under the Act, to adjudicate upon any disputes in relation to matters, covered by the Standing Orders, framed under the Standing Orders Act.
Further, accepting the contention of the learned counsel for the appellant, will be to practically wipe out the existence of the Act, so far as industrial establishments, governed by the Standing Orders Act, are concerned.
The Legislature, in 1956, amended, .by the same Act viz., Act XXXVI of 1956, both the Act and the 'Standing Orders Act.
Schedules were also incorporated in the Act, and.
in particular, the same item.
which is referred to in section 13A, of the Standing Orders Act, is again referred to, as item 2.
of the Second Schedule to the Act, over which the Labour Court has jurisdiction.
Item 5, of the Schedule to the Standing Orders Act, as interpreted, by this Court.
gives jurisdiction to the authorities under that Act, to frame standing order,;.
with reference 595 not only to the procedure for rant of leave and holidays, but also in respect of the quantum of leave, and allied matters.
The Legislature, in item 4 of the Third Schedule to the Act, dealing with 'leave with wages and holidays ', has conferred jurisdiction, In that regard, on the Industrial Tribunal.
The Standing Orders Act which, has for its object, the defining, with sufficient precision, the conditions of employment, under the industrial establish ments and to make the said conditions known to the workmen employed by them, has provided more or less a speedy remedy to the workman, for the purpose of having a standing order modified, or for having any question relating to the application, or interpretation of a standing order, referred to a labour Court.
But there is no warrant, in our opinion, for holding that merely because the Standing Orders Act is a self contained statute, with regarded to the matters mentioned therein, the jurisdiction of the Industrial Tribunal, under the Act, to adjudicate upon the matters, covered by the standing orders, has been, in any manner,abridged or taken away.
It will always be open, in a proper case,for the Union or workmen to raise an 'industrial dispute ', as that expression is defined in section 2(k) of the Act, and, if such a dispute is referred by the Government, concerned, for adjudication, the Industrial Tribunal or Labour Court, as the case may be.
will have jurisdiction to adjudicate, upon the same.
But, it must also be borne in mind that an 'industrial dispute ' has to be raised by the Union, before it can be referred and, it is not unlikely that a Union must.
be persuaded to raise the dispute, though the grievance of a particular workman, or a member of the Union, be otherwise well founded.
Even if the Union takes up the dispute, the State Government may, or may not, refer it to the Industrial Tribunal.
The discretion of the State Government, under section 10 of the Act, is very wide.
It may be that the workmen.
affected by the standing orders, may not always, and in every case, Succeed in obtaining a reference to the Industrial Tribunal, on a relevant point.
These are some of the circumstances for giving a right and remedy, to the workman, under the Standing Orders Act itself, but there is no indication, in the scheme of the Standing, Orders Act, that the jurisdiction of the Industrial Tribunal, to entertain an 'Industrial dispute ', bearing upon the standing orders of in industrial establishment, and to adjudicate upon the same, has any manner been abridged, or taken away, by the Standing Orders Act.
Therefore, on this aspect, we are in agreement with he conclusions, arrived at, by the Industrial Tribunal, and the High Court.
But, in view of our finding on the first point, that the award, Exhibit M 6 'had not been terminated.
it follows that the reference.
made by the State Government, dated March 20,1963, in his case, is incompetent, and the Industrial Tribunal has no jurisdiction to adjudicate upon the same, in I.D. No. 8 of 1963.
In the result, the order :of the High Court is set aside, and a writ of 596 prohibition, restraining the second respondent, from proceeding_ with the adjudication, in I.D. No. 8 of 1963, will issue, and the appeal allowed, to that extent.
Parties will bear their own costs, in this appeal.
G.C. Appeal allowed in part.

dataset_name: IN-Abs

summary/full:
The Standing Orders of the appellant 's establishment, duly certified under the , dealt, inter alia, with provisions relating to leave to be granted to the workmen.
In I.C. 11 of 1955 the Industrial Tribunal by its award modified the said standing orders and made provisions for certain kinds of leave.
The award came into operation on November 18, 1956 under section 19(3) read with section 17A(7) of the .
On further disputes arising the parties entered on September 19, 1958 into a settlement under section 12(3) of the whereby in return for the revision of the scales of pay, the workmen agreed that for a period of three years commencing from January 1, 1958, they would not raise any dispute on certain matters including leave.
This settlement was terminated by the workmen by notice dated August 14, 1961 under section 19(2) of the .
In 1963 the State Government again referred to the Industrial Tribunal an industrial dispute between the appellant and the workmen.
This dispute was registered as I.D. No. 8 of 1963 and the questions referred related to privilege leave, casual leave and sick leave.
The appellant urged before the Tribunal that it was not competent to hear the reference because (i) the earlier award in I.C. 11 of 1955 which dealt with matters relating to leave had not been terminated by a notice under section 19(6) of the ; (ii) the Standing Orders in question could be modified only by the procedure under the Standing Orders, Act and not under the because the former Act was self sufficient in regard to the matters covered by it.
The Tribunal and the High Court both rejected the appellant 's objections, whereupon, by special leave, appeal was filed in this Court.
On behalf of the workmen it was stated that notice of termination of the earlier award under section 19(6) of the Industrial disputes Act had been given by them in a letter dated June 26, 1961.
HELD:(i) When there is a subsisting award binding on the parties the Tribunal has no jurisdiction to consider the same points in a fresh reference.
In the present case the earlier award had not been terminated and the reference was therefore incompetent.
[588D] The letter of June 26, 1961 could not be treated as a notice under s.19(6) of the terminating the earlier award in I.C. 11 of 1955 because it did not convey any such intention.
Moreover it was written while the settlement of September 19, 1958 by which the workmen had bound themselves not to raise any dispute regarding leave facilities for three years was still in force, for the notice of.
termination of the settlement under section 19(2) was given by the workmen only on August 14, 1961.
Until the said settlement was terminated the union of workmen had no right to make demands about leave facilities as it purported to do on June 26, 1961.
[587G 588C] 582 The Workmen of Western India Match Co. Ltd. vs The Western India Match Co. Ltd., ; , referred to.
(ii) The Standing Orders Act which has for its object, the defining with sufficient precision.
the conditions of employment, under the industrial establishments and to make the said conditions known to the workmen, has provided more or less a speedy remedy to the workmen, for the purpose of having a standing order modified or for having any question relating to the application, or interpretation of a standing order.
referred to a labour court.
But there is no warrant for holding that merely because the Standing Orders Act is a selfcontained statute with regard to the matters mentioned therein, the jurisdiction of the Industrial Tribunal under the Act.
to adjudicate upon the matters covered by the standing orders, has been in any manner abridged or taken away, It will always be open in a proper case, for the union or workmen to raise an 'industrial dispute ' as that expression is defined in section 2(k) of the , and if such a dispute is referred by the Government concerned for adjudication the Industrial Tribunal or Labour Court as the case may be will have jurisdiction to adjudicate upon the same.
[595B D] Guest, Keen, Williams., Private Ltd. vs P. J. Sterling, ; , The Baualkot Cement Co. Ltd. vs R. K. Pathan, [1962] Supp.
2 S.C.R. 697 and Salem Electricity vs Employees. , distinguished.


judgement:
Appeals Nos.
369 to 375 of 1967.
599 Appeals from the judgment and order dated October 15, 1966 of the Gujarat High Court in Special Civil Applications Nos.
1475, 1479, and 1480 of 1965, and 119, 120, 12.2 and 125 of 1966 respectively.
G.L. Sanghi and Ravinder Narain, for the appellants (in all the appeals).
Bishan Narain, R. H. Dhebar and section P. Nayar, for respondents Nos. 1 and 2 (in all the appeals).
Arun H. Mehta and I.N. Shroff, for respondent No. 3 (in all the appeals).
The Judgment of the Court was delivered by Shelat, J.
These appeals by certificate are directed against the judgment of the High Court of Gujarat dismissing the writ petitions filed by the appellants for quashing the notifications dated August 28, 1964 and October 18, 1965 respectively issued under sections 4 and 6 of the Land Acquisition Act,1 of 1894.
The appellants are the owners of the lands in question situate at Ranoli, District Baroda.
The 3rd respondent Company also owns about 140 acres of land in the same village.
The appellant 's lands are either situate adjacent to and between the Company 's lands and the railway lines or are enclaves surrounded by lands belonging to the Company.
On July 22, 1961 the State Government issued a notification under sec.
4 of the Act to the effect that the appellants ' said lands were or were likely to be needed for a public purpose,, viz., for a fertilizer factory.
That notification was withdrawn on September 11, 1961 as the lands were stated to be unsuitable for such a factory.
The Government however issued the very next day a fresh notification under sec.
4 in respect of the same lands, this time for the purpose of the 3rd respondent Company.
Some of these appellants thereupon filed writ petitions challenging its validity.
While these petitions were pending before the High Court this Court delivered its decision in what is known as the first Arora Case(1).
To get over the difficulties arising from that decision, first an Ordinance and then the Amendment Act XXXI of 1962, were passed.
The Amendment Act was brought into force from July 20, 1962 with retrospective effect.
The Central Government thereafter made Rules under sec.
55 of the Act called the Land Acquisition (Companies) Rules which were brought into force from June 22, 1963.
On July 24, 1963 the State Government withdrew the notification dated September 12, 1961 whereupon the writ petitions filed by the appellants challenging the said notifications were withdrawn.
In the meantime one D.K. Master, who was then the Special Land Acquisition Officer, Baroda, started an inquiry under Rule 4 of the said Rules.
On August 28,1964 the State Government issued a notification under (1) [1962] Supp. 2 S.C.R. 149:A.I.R. 600 sec.
4 stating that the appellants ' said lands were needed or were likely to be needed for the establishment of a factory of the 3rd respondent Company.
The appellants filed their objections in the inquiry then held under sec.
5A but they were rejected.
On October 18, 1965 the State Government issued sec.
6 notification declaring that the said lands were needed for the factory of the 3rd respondent Company which it was stated was taking steps or en,gaging itself for manufacture of optical bleaching agents, interme diate dye stuffs etc., which according to the Government was for a public purpose.
The appellants thereupon filed writ petitions from which these appeals arise challenging the two notifications dated August 28, 1964 and October 18, 1965 respectively.
When these writ petitions came on for hearing the State Government produced a notification dated October 11, 1963 authorising the Special Land Acquisition Officers of the State to perform the functions of the Collector under sec. 3(c).
On certain contentions having been raised on the basis of this notification, the High Court adjourned the hearing to enable the State Government to explain the circumstances and the reasons for issuing the said notification.
On August 25, 1966 the said Master filed a further affidavit clarifying the Government 's position and the circumstances in which he performed the functions of the Collector under sec. 3(c).
Before the High Court the appellants contended that the pro cedure laid down in the said Land Acquisition (Companies) Rules was not followed, that the purpose for which the acquisition was being made was not a public purpose within the meaning of sec.
40(1)(a), that the acquisition was made mala fide and in colourable exercise of power, that the State Government had not applied its mind to the facts of the case and lastly that the inquiry under sec.
5A was a quasi judicial inquiry and that as an opportunity to be heard was not given to the appellants the proceedings under sec.
5A violated natural justice.
Counsel, however, conceded that the inquiry under section 5A was administrative but contended that the appellants were still entitled to be heard before the State Government formed its satisfaction that the lands were required for the Company.
The High Court rejected all these contentions and dismissed the writ petitions.
Hence these appeals.
Counsel for the appellants formulated the following five pro,positions on which he impugned the High Court 's judgment: (1)that the inquiry under Rule 4 of the Land Acquisition (Companies) Rules and the consequent report made by Master to the Government were invalid; therefore there being no valid report under Rule 4 read with section 40, no notification either under s.4 ,,or sec.
6 could be validly issued; 601 (2) that sec.
6 notification was issued without complying with Part VII of the Act and without a valid consent of the State Government as required by sec.
39 and therefore no notification either under sec.
4 or sec.
6 could be lawfully issued; (3) that the acquisition was made mala fide and without ap plication of mind to the relevant facts; (4) that the acquisition did not involve any public purpose; and (5) that the State Government was bound to give an oppor tunity of being heard to the appellants before taking decision under sec.
5A, particularly when the report of the said Master was against the acquisition.
We shall consider these propositions in the order in which they were urged.
As regards propositions 1 and 2.
the argument was that Mas ter was only a Sp.
L.A. officer but was not the Collector within the meaning of Rule 4 and therefore the inquiry held by him under that Rule and the report made consequent thereto were invalid; that even if Master can be held to have been authorised to perform the functions of the Collector he was not "specially appointed" as Collector; that the State Government had not given any direction to him to make a report as required by Rule 4 and that the notification dated October 11, 1963 did not "appoint" but simply authorised him to perform the functions of the Collector.
It is not in dispute that as required by the said Rules the State Government had apponited a Land Acquisition Committee before it issued the notification under sec.
The affidavit of Master establishes that he worked as a Sp.
L.A. officer at Baroda from December 6, 1961 to April 29 1965.
On February 11, 1963 he was appointed to officiate as Special Land Acquisition Officer, Baroda.
On October 1. 1963 the Government wrote a letter to him forwarding the application dated September 11, 1963 of the 3rd respondent Company requesting the Government to acquire the lands in question and directing him to hold an inquiry according to the said Rules and to make a report.
The letter also stated that be was being authorised separately to perform the functions of the Collector and that on such authorisation he would be competent to make the inquiry.
On the same day,the Government issued a notification under sec.
3(c) authorising him to perform the function of the Collector within Baroda District.
But on October 11, 1963 the Government issued another notification superseding the notification of October 1, 1963 and authorising all Special Land Acquisition Officers in the State to perform the functions of the Collector under the Act within the area of their respective jurisdiction.
On October 10, 1963 Master had addressed a letter to the 602 Company to supply information for his inquiry under Rule 4.
On October 22, 1963 he issued notices to 27 owners of the lands proposed to be acquired but only 10 of them appeared before him and he recorded their statements on October 31, 1963.
There is thus no doubt that Master was instructed by the State Government to hold an inquiry and to submit his report.
Rule 4 requires the Collector to make an inquiry regarding the matters stated therein, such matters inter alia being that the land requested by the Company for acquisition is not excessive, that the Company has made efforts and offered reasonable.
price to buy the land from the owners, that if the land happens to be good agricultural land, there is no other alternative land suitable for the Company 's purpose and the approximate amount of compensation which would be payable if the lands were acquired.
The Collector after making such inquiry has to submit his report to the Government.
The Government then forwards it to the Land Acquisition Committee and the Committee has to advise the Government.
Rule 4 prohibits the Government from issuing notification under section 6 unless it has consulted the Committee and considered the said report as also the report made under section 5A and unless an agreement with the Company under section 41 has been executed.
The contention was that though Master held the inquiry and made the report he had functioned not as the Collector but in his capacity as the Special Land Acquisition Officer, Baroda, and therefore the notification under sec.
4 and section 6 were invalid.
The argument was, firstly, that Rule 4 does not define "collector" and therefore the word "collector" must mean the Collector of the District and secondly, that even if Master was appointed as the Collector as defined by sec.
3(c) his appointment as Collector was not valid as he was not specially appointed to perform the functions of the Collector.
It was said that the notification dated October 11, 1963 did not "specially" appoint Master but was a general notification authorising not only, Master but all the Special Land Acquisition Officers in the State appointed not only before the date of sec.
4 notification but also those who would be appointed in future.
In our view, these contentions cannot be upheld.
Section 3(c) defines a Collector to mean Collector of the District and includes Deputy Commissioner and any officer specially appointed by the Government to perform the functions of a Collector under the Act.
Section 20 of the General Clauses Act, X of 1897 provides that where a Central Act empowers making rules, the expressions used in such rules, if made after the commencement of that Act shall have the same meaning as in the Central Act, unless there is anything repugnant in the subject or context.
There being nothing repugnant in the subject or context, the word "collector" must have the same meaning in the rules as in sec.
3(c) which includes an officer specially appointed to perform the functions of the Collector.
If therefore Master can be said to have.
608 been specially appointed to perform the functions of the Collector Linder the Act no challenge can be entertained as to his competence to make the inquiry and the report under Rule 4 of the said Rules.
Sanghi conceded that the notification dated October 1, 1963 did "specially" appoint Master as the Collector.
Baroda but argued that as that notification was superseded it would not avail the respondents and therefore the question was whether the noti fication dated October 11, 1963 can be said to have specially appointed Master as Collector.
He argued that since that notification appointed all the Special Land Acquisition Officers to perform the functions of the Collector within their respective areas the appointments made thereunder must be regarded as general and not appointments specially made and therefore it cannot be said that Master or any one of them was specially appointed as required by sec. 3(c).
The argument therefore resolves itself to what is the true meaning of the words "specially appointed".
In our view, those words simply mean that as such an officer is not a Collector and cannot perform the functions of a Collector under the Act, he has to be "specially appointed", that is ' appointed for the specific purpose of performing those functions.
The word "specially ' has therefore reference to the special purpose of appointment and is not used to convey the sense of a special as against a general appointment.
The word "specially" thus connotes the appointment of an officer or officers to perform functions which ordinarily a Collector would perform under the Act.
It qualifies the word "appointed" and means no more than that he is appointed specially to perform the functions entrusted by the Act to the Collector.
It is the appointment therefore which is special and not the person. from amongst several such officers.
Besides, sec.
15 of the General Clauses Act provides that where a Central Act empowers an authority to appoint a person to perform a certain function, such power can be exercised either by name or by virtue of office.
There would therefore be no objection if the appointment is made of an officer by virtue of his office and not by his name.
Therefore even if the meaning of the word "specially" were to be that which is canvassed by Mr. Sanghi the Government could have issued separate notifications for each of the Sp.
L.A. officers authorising them individually to perform the functions of the Collector within their respective area of jurisdiction.
Instead of doing that, if one notification were to be issued authorising each of them to perform those functions there could be no valid objection.
Such a notification would have the same force as a separate notification in respect of each individual Sp.
L.A. officer.
Such a notification Would mean that the Government thereby appoints each of the existing Sp. L. A. officers to perform the functions of the Collector within, their respective areas.
It is true that the notification also declares that such of the Sp.
L.A. officers as may be appointed in future are also authorised to preform the Collector 's functions.
That only means that whenever a person would be appointed as a Sp.
L.A. 604 officer for a particular area, the notification would in effect invest him at the same time with the authority to perform the Collector 's functions.
The appointment of each of these officers therefore must be held to be special and not general.
But Mr. Sanghi argued that even so the notification did not "appoint" Master but merely authorised him to perform the Collector 's functions.
In our View.
the distinction is without difference.
In the context of sec.
3(c) when an officer is authorised to perform the functions of the Collector it means that he is appointed to perfore those functions.
The clause does not contemplate a separate or an additional post.
What it means is that some officer who is already in the Government employment is authorised to work as a Collector for the purposes of the Act.
In this sense whether he is appointed or authorised to perform the Collector 's functions he would be complying with the terms of that clause.
It was then urgued that the inquiry under Rule 4 is a quasi judicial inquiry and therefore it was incumbent on Master to give an opportunity to the appellants to be heard.
The Rule however provides that the officer conducting the inquiry has to hear the Company before making his report.
Whether he has also to hear tile owners of the land or not need not be decided in these appeals as Master had in fact given such an opportunity to the appellants by serving them with notices and recorded the statements of such of them who cared to appear before him.
There is therefore no merit in that contention.
Next it was urged that the inquiry under Rule 4 has to be held after the notification under sec.
4 is issued and not before and therefore the inquiry held by Master was no , valid.
We do not find anything in Rule 4 or in any other Rule to warrant such a proposition.
The inquiry, the report to be made consequent upon such inquiry.
obtaining the opinion of the Land Acquisition Committee, all these are intended to enable the Government to come to a tentative conclusion that the lands in question are or are likely to be needed for a public purpose and to issue thereafter sec.
4 notification.
In our view, no objection to the appointment of Master to perform the functions of the Collector under sec.
3(c) or to his competence to make the inquiry and the report under Rule 4 or their legality can be validly made It follows that the consent given by the State Government for initiating acquisition proceedings was validly given and was in compliance with the provisions of Part VII of the Act and the State Government could validly issue the impugned notifications.
This disposes of Mr. Sanghi 's propositions 1 and 2.
The third proposition is that the State Government exercised the power under the Act mala fide and without applying its mind to the facts of the case.
Paragraph 10 of the petition containing the plea as to mala fides is in general terms without any particulars.
Even such of the allegations that are to be found there arc more against the 3rd respondent Company than against the State Government.
These are based on the fact that the Company had 605 sufficient land of its own and the acquisition was therefore being made so that the Company may acquire the neighbouring lands without utilising its own lands.
It is true that the Company owns.
140 acres of land.
But as the affidavit of the Company 's officer shows out of these 140 acres 48 acres are ravine lands, unfit as factory sites.
According to the Company, those lands however will be utilised for housing accommodation for its 700 workmen and for amenities for them such as play grounds, a sports club.
a recreation centre and a co operative consumer society.
Forty acres out of, the rest of the land have already been used for constructing some: of the factories ' warehouses and godowns.
As regards the balance: of 60 acres, they do not form a compact block and contain in them small pockets belonging to the appellants.
The Company 's case was that unless these pockets are acquired and these 60 acres are made, into one compact lot it would not be possible to use them as factory site.
These lands are, besides, divided by a Nal which if filled Lip would block access to the appellant 's lands.
Unless the enclaves are acquired.
the said Nal which divides the Company 's lands car,not be filled up.
A portion of the lands in question is also necessary for an approach road leading to the proposed railway siding.
Some of the land will have to be kept open as otherwise the noxious fumes omitted by the factories would prove detrimental to the: health of the neighbours.
The documents produced by Master reveal that the inquiry,.
held by him ",as on the question whether the Company was trying to acquire excessive land.
It is therefore not possible that the Government failed to apply its mind having had Master 's report before it as also the report under sec.
5A as regards the extent of land needed by the Company.
It was however arzueed though somewhat vaguely that the Company would not require as much, as 40 acres for housing its workmen and also that the Company has its own land near the railway lines which can well be used for the proposed railway siding.
No effort however was made to show that the Company would not really need 40 acres for housing purposes.
As regards the proposed railway siding also there is no data to show that the Company 's land near the railway lines would be suitable for constructing such railway siding.
The appellant 's lands appear to be near the existing goods platform.
It may be that the Government found on the basis of the reports before it that the appellants ' lands near the goods platform would be more suitable for the railway siding than the Company 's land near the railway lines.
Mr. Sanghi then contended that the fact that the Government had been trying to acquire these lands since 1962 and has been issuing one notification after another shows the exercise of the, power to acquire was mala fide.
No 1 such inference can be drawn from such a fact only.
The fact, on the other hand, that the Government cancelled its first notification on the ground that these 606 lands were not suitable for a fertiliser factory gives a clear indication that it had applied its mind and relatives the allegation of mala fide exercise of power.
The correspondence which the Company produced during the hearing of the petitions shows that as soon as the decision in the first Arora Case(1) was given the Government at once cancelled the notification in spite 'of the Company 's request to continue it.
This negatives any suspicion as to collusion between the Company and the acquiring authority.
It is true that Master 's opinion was adverse to acquisition but the Government was not bound to accept it.
However, the fact that a responsible officer of the Government gave an adverse opinion is yet another indication that he was acting independently without being influenced by the Government or the Company.
In our view, the appellants failed to establish their allegation either as to mala fide or the non application of mind by the State Government.
The third proposition of Mr. Sanghi therefore must fail.
As regards proposition No. 4, the only argument urged was that when a particular land is being already used for one public purpose, in this case the manufacture of "sagol", a building material made from lime, the legislature could not have intended to empower the Government to destroy that purpose and substitute in its place another public purpose.
We need only say that a similar argument was urged in Somavanti 's Case (2 ) and rejected by this Court.
The last proposition of Mr. Sanghi was that even though an inquiry under section 5A may be an administrative inquiry, the State Government was bound to give an opportunity to be heard to the appellants after receiving the report thereunder and before making up its mind for the purpose of issuing sec.6 notification.
It is not in dispute that during sec.
5A inquiry the appellants were heard and their objections were taken on record.
Under sec.
5A, the Collector has to hear the objections of the owner.
take them on r ecord and then submit his report to the Government.
The section also requires him to send along with his report the entire record of his inquiry which would include the objections.
The report has merely recommendatory value and is not binding on the Government.
The record has to accompany the report as it is for the Government to form independently its satisfaction.
Both are sent to enable the Government to form its satisfaction that the acquisition is necessary for a public purpose or for the Company.
It is then that sec.
6 notification which declares that particular land is needed for either of the two purposes is issued.
The Government thus bad before it not only the opinion of Master but also all that the appellants had to say by way of objections against the proposed acquisition.
The appellants therefore had an opportunity of (1) [1962] Supp. 2 S.C.R. 149, (2) 607 being heard.
Neither sec.
5A nor any other provision of the Act lays down that a second opportunity has to be given before the issuance of section 6 notification.
This contention also therefore cannot be sustained.
These were all the contentions urged before us.
As none of them can be upheld the appeals have to be dismissed.
The appellants will pay to the respondents the costs of these appeals.
(One hearing fee).
R.K.P.S. Appeals dismissed.

summary/full:
On October 1, 1963, the State Government issued a notification under section 3(c), authorising one M who was then the Special Land Acquisition Officer, Baroda, to perform the functions of a Collector and also directed him to hold an enquiry under the Land Acquisition (Companies) Rules on the application of the third respondent company requesting the government to acquire the appellant 's land.
In supersession of that notification, the Government issued another notification on October 11, 1963 authorising all Special Land Acquisition Officers to perform the functions of the Collector under the Act within the area of their respective jurisdiction.
After M had made an enquiry under Rule 4, the respondent State Government issued a notification under Section 4 of the Land Acquisition Act, 1894, on August 28.
1964 in respect of the appellant 's land which was stated to be required for the establishment of a factory by the third respondent company.
Objections filed by the appellants in an enquiry under section 5A were rejected and the State Government thereafter issued a notification under section 6 on October 18, 1965.
The appellants challenged the notification by writ petitions but these were, dismissed by the High Court.
In the appeal to this Court, it was contended on behalf of the appellants, inter alia.
(i) that M was only a Special Land Acquisition Officer and not the Collector within the meaning of Rule 4; in any event the notification of October 11, 1963 did not "specially" appoint him but was a general notification authorising all the Special Land Acquisition Officers in the State appointed not only before the date of section 4 notification but also those who would be appointed in future,.
furthermore, the notification did not "appoint" but simply authorised him to perform the functions of the Collector, the State Goverrunent had not given any direction to him to make a report as required by .Rule 4; therefore the enquiry held by him under that Rule and the ,report made was invailed and consequently no notification either under section 4 or section 6 could be validly issued; (ii) that the section 6 notification was issued without complying with Part VII of the Act and without the valid consent of the State Government as required by section 39; (iii) that the acquisition was made mala fide and without application of mind to the relevant facts: (iv) that the acquisition did not involve any public purpose: and (v) that the State Government was bound to give an opportunity of being heard to the appellants before taking a decision under section 5A particularly when the report made by M was against the acquisition, 598 HELD: Dismissing the appeal.
(i) No objection to the appointment of M to perform the functions of the Collector under section 3(c) or to his competence to make the enquiry and the report under Rule 4 or their legality can be validly made.
It follows that the consent given by the State Government in initiating acquisition proceedings was validly given and was in comp liance with the provisions of Part VII of the Act and the State Government could validly issue the impugned notifications.
[604G] There being nothing repugnant in the subject or context, the word "Collector" must, by virtue of section 20 of the , have the same meaning in the Rules as in section 3(c) of the Act which includes an officer specially appointed to perform the functions of the Collector.
[602H] The words "specially appointed" simply mean that as a Sp.
L.A. Officer is not a Collector and cannot perform the functions of a Collector under the Act.
he has to be "specially appointed", i.e. appointed for the specific purpose of performing those functions.
The word "specially" has therefore reference to the special purpose of appointing and is not used to convey the sense of a special as against a general appointment.
Furthermore, section 15 of the General Clauses Act provides that where a Central Act empowers an authority to appoint a Person to Perform a certain function such power can be exercised either by name or by virtue of office.
[603C F] In the context of section 3(c) when an officer is authorised to perform the functions of the Collector, it means that he is appointed to perform those functions.
The distinction between the two is without a difference.
[604B] There is no force in the contention that the enquiry under rule 4 has to be held after the notification under section 4 and not before.
There is nothing in rule 4 or any other rule to warrant such a proposition.
(ii) On the facts, the appellants had failed to establish their allegation either as to mala fides or the non application of mind by the State Government.
(iii) There is no force in the contention that when the appellant 's lands were already being used for the manufacture of a building, material and that was also a public purpose, the legislature could not have intended to empower the Government to destroy that purpose and substitute in its place another Public purpose.
[606D] Arora Case, [1962] Supp, 2 'S.C.R. 149: referred to.
(iv) It is not disputed that during the section 5A enquiry the appellants were heard and their objections were taken on record.
The record of the enquiry is required under section 5A to be sent to the Government so as to enable the Government to decide whether the acquisition is necessary for a public purpose or for a company.
The Government thus had before it not only the opinion of M but also all that the appellants had to say by way of objections against the proposed acquisition.
The appellants therefore had an opportunity, of being heard.
Neither section 5A nor any other provision of the Act lays down that a second opportunity has to be given before the issuance of the Section 6 notification.
[606F 607A]


judgement:
Appeal No. 34 of 1965.
Appeal by special leave from the judgment and decree dated November 6, 1962 of the Allahabad High Court in Second Appeal No. 3745 of 1958.
B. C. Misra and section section Shukla, for the appellants.
section P. Sinha, E. C. Agarwala and P. C. Agarwala, for the respondents.
The Judgment of the Court was delivered by Shah, J.
A piece of agricultural land bearing Survey Nos. 723/2, 724, 725 and 726 of Naugawan, tahsil Fatehabad, District Agra, originally belonged, to two brothers Tota Ram and Lajja Ram.
Tota Ram and Lajja Ram were declared to be bhumidhars in respect of that land and a Sanad was issued in their favour under section 7 of the U.P. Act 10 of 1949.
On October 20, 1951, Tota Ram and Lajja Ram sold their interest in the land 619 to two brothers Sri Ram and Ram Prasad who will hereinafter be called 'the plaintiffs '.
Disputes arose thereafter about the possession of the land between one Pritam Singh and the plaintiffs, and proceedings under section 145 of the Code of Criminal Procedure were started before the Sub Divisional Magistrate at the instance of Pritam Singh.
The Sub Divisional Magistrate attached the land and called upon the parties to agitate the dispute as to their respective rights therein in a civil suit.
The plaintiffs then commenced an action in the Court of the Munsif, Fatehabad, against Pritam Singh and Tota Ram for a declaration of their rights as bhumidhars in possession of the land in suit and for an order "expunging" the name of Pritam Singh from the revenue records.
Pritam Singh resisted the suit contending, inter alia, that the land was abandoned by Tota Ram and Lajja Ram and that since it was under his cultivation continuously since Fasli year 1356 (the year commencing from July 1, 1948 and ending on June 30, 1949) he had acquired the rights of an adhivasi in the land and he was not liable to be evicted from the same.
The Munsif referred the following issue arising out of the pleadings to the Assistant Collector, Agra, for decision: "Whether the defendant No. 1 (Pritam Singh) has acquired adhivasi rights, if so, its effect?" The Assistant Collector held that the revenue records did not "how that Pritam Singh was in possession at any time in or before 'the end of 1359 Fasli and that the entries in the khasra relied upon by Pritam Singh had been fabricated to support his case.
Consistently with the finding of the Assistant Collector, the Munsif passed judgment in favour of the plaintiffs.
But in appeal to the District Court, Agra, that judgment was reversed.
The Appellate Judge held that the revenue entries were genuine entries posted by the Patwari in discharge of his duty and that Pritam Singh was in possession in the year 1356 Fosli and also in 1359 Fasli and he had acquired the rights of an adhivasi.
The plaintiffs then carried the dispute to the High Court of Allahabad.
The High Court reversed the decree passed by the First Appellate Court and restored the decree of the Munsif.
With special leave, the heirs and legal representatives of Pritam Singh have appealed to this Court.
It was not the case of Pritam Singh that he has acquired title to the land by transfer or by adverse possession.
Pritam Singh relied merely.
upon the entries in khasra for 1356 Fasli and his claim of possession of the land in Fasli 1359, and upon statutory consequences arising from the entries under section 20(b) of the U.P. Zamindari Abolition and Land Reforms Act 1 of 1951, and section 3 of the U.P. Land Reforms (Supplementary) Act 31 of 1952.
The U.P. Zamindari Abolition and Land Reforms Act 1 of 1951 was brought into force from July 1, 1952.
By section 20 certain rights were conferred upon persons whose names were recorded 620 in the revenue records in respect of agricultural land.
The material clause (b) of section 20 on which reliance is placed reads as follows: "20.
Every person who (a) (b) was recorded as occupant (i) of any land (other than grove land or lands to which section 16 applies) in the khasra or khatauni prepared under sections 28 and 33 respectively of the U.P. Land Revenue Act, 1901, or who was on the date immediately preceding the date of vesting entitled to regain possession thereof under clause (c) of sub section (1) of section 27 of the United Provinces Tenancy (Amendment) Act, 1947, or The land in dispute is not grove land, nor it is land to which section 16 of the Act applies.
Pritam Singh claimed that his name was entered as an occupant in the khasra of 1356 Fasli prepared under the U.P. Land Revenue Act, 1901, and he was on that account entitled to the rights of an adhivasi in respect of the land.
It was held by this Court in Amba Prasad vs Abdul Noor Khan and Others(1) that section 20 of U.P. Act 1 of 1951 does not require proof of actual possession: it eliminates inquiries into disputed possession by accepting the record in the khasra or khatauni of 1356 Fasli or its correction before July 1, 1952.
In view of that decision it must be held that the Civil Court in adjudging a claim of a person to the rights of an adhivasi is not called upon to make an enquiry whether the claimant was actually in possession of the land or held the right as an occupant: cases of fraud apart, the entry in the record alone is relevant.
But the entries on which reliance was placed by Pritam Singh do not support his case that he was recorded as an occupant in the khasra or khatauni of 1356 Fasli.
In the certified extract of the khasra for 1356 Fasli (Ext.
A/ 1) tendered in evidence by Pritam Singh in the column 'Name and caste of cultivator ' the entry is "Tota Ram and others" and in the column for 'remarks ' the entry is "Pritam Singh s/o Pyarelal of Sankuri".
Our attention has not been invited to any provision of the U.P. Tenancy Act or instructions issued by the Revenue authorities which tend to establish that the name of an occupant of land is liable to be entered in the column reserved for 'remarks '.
In order that a person may be regarded as an adhivasi of a piece of land, section 20(b) of Act 1 of 1951 requires that his name must be recorded in the khasra or khatauni for 1356 Fasli as an occupant.
The Assistant Collector has pointed out that according to paragraph 87 of the Land Records Manual it is necessary for a Patwari to make an (1) ; 621 enquiry about the status of the occupant, and if he thinks that a claimant is an occupant, he should enter the name in red ink in khsra as "Kabiz, sajhi etc.".
Admittedly Pritam Singh was not shown as Kabiz or sajhi nor was the entry posted in red ink.
There is also strong evidence on the record which shows that the name of Pritam Singh was surreptitiously entered in the khasra for 1356 Fasli.
In the khasra Barahsala i.e. consolidated khasra for 1347 to 1358 Fasli Tota Ram and Lajja Ram are shown its persons cultivating the land and there is no record of the name of any sub tenant on the land.
Before the Assistant Collector two certified extracts of the khasra for 1356 Fasli in respect of the land in dispute were produced.
In the certified extract Ext.
A/ 1 tendered by Pritam Singh his name was shown in the 'remarks ' column.
in the certified extract tendered by the plaintiffs there was no such entry.
The Assistant Collector did not call for the original record, nor did he attempt to probe into the circumstances in which the entry of Pritam Singh dame to be made.
He, however, observed that in Ext.
A/ 1 the name of Pritam Singh was entered in the 'remarks ' column against Survey No. 723/1 which had fallen in an earlier partition to the share of one Kunjilal and in respect of which Pritam Singh had never claimed any right.
The First Appellate Court did not refer to these important pieces of evidence.
His conclusion cannot be regarded as binding upon the High Court in Second Appeal.
It must therefore be held that relying upon the entry of his name in the 'remarks ' column in the khasra for 1356 Fasli Pritam Singh could not claim that he had established his rights as an adhivasi of the land under section 20(b) of the U.P. Zamindari Abolition and Land Reforms Act 1 of 1951.
The alternative case under section 3 of the U.P. Land Reforms (Supplementary) Act 31 of 1952 may now be considered.
Section 3 of Act 31 of 1952 provides, insofar as it is material: "(1) Every person who was in cultivatory possession of any land during the year 1359 fasli but is not a, person who as a consequence of vesting under Section 4 'of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act 1 of 1951) (hereinafter referred to as the said Act), has become a bhumidhar sirdar, adhivasi or asami under Sections 18 to 21 of the said Act shall be and is hereby declared to be, with effect from the appointed date (a) if the bhumidhar or sirdar of the land was, or where the land belongs jointly to two or more bhumidars or sirdars, all of them were, on the appointed date person or persons referred to in item (i) to (vi) of sub section (2) of Section 10 of the said Act, an asami from year to year, or 622 (b) if the bhumidhar or sirdar was not such a person, an adhivasi, and shall be entitled to all the rights and be subject to all the liabilities conferred or imposed upon an asami or an adhivasi, as the case may be, by or under the said Act.
Explanation A person shall not be deemed to be in cultivatory possession of the land, if he was cultivating it as a mortgagee with possession or a thekedar, or he was merely assisting or participating with a bhumidhar sirdar, adhivasi or asami concerned in the actual performance of agricultural operations.
" The section appears to be somewhat involved in its phraseology.
But its purport is fairly clear.
A person who is not in consequence of the provisions of sections 18 to 21 of the U.P. Act 1 of 1951 a bhumidhar, sirdar, adhivasi or asami but who is in "cultivatory possession" of land during 1359 Fasli shall be entitled to the rights in respect of that land of an asami from year to year if the bhumidhar or sirdar of the land was on the appointed date a person who is referred to in item (i) to (vi) of section 10(2) of the U.P. Act 1 of 1951, and he shall be entitled to the rights of an adhivasi if the bhumidhar or sirdar of the land was not a person referred to in items (i) to (vi) of section 10(2).
The U.P. Act 31 of 1952 was enacted to grant protection to certain persons who had been in "cultivatory possession" of land in the holdings of bhumidhars or sirdars, and had been or were being forcibly evicted from the land by the tenure holders.
The language of the section clearly shows that it was intended to grant the rights of an asami or adhivasi according as the case fell within cl.
(a) or cl.
(b) to a person who had been admitted to cultivatory possession and who was in such possession in 1359 Fasli.
Pritam Singh had no right to the land at all and the revenue record shows that till the end of 1358 Fasli i.e. till June 30, 1951, the land was not in his possession.
Pritam Singh is recorded in the khasra of 1359 Fasli in the column for shikmi (sub tenant) as without settlement of rent", and Tota Ram and Lajja Ram are entered as cultivators.
In the khatauni for 1359 Fasli Pritam Singh is shown as "cultivator for ' one year, without settlement of rent".
There are similar entries in the khasra and khatauni for 1361 Fasli, and in 1362 Fasli the names of the plaintiffs are entered in the column of cultivator, and the name of Pritam Singh is shown in the column for shikmi.
The scheme of section 3 of the U J.P. Land Reforms (Supple mentary) Act, 1952 is different from the scheme of section 20(b) of the U.P. Zamindari Abolition and Land Reforms Act 1 of 1951.
Whereas under Act 1 of 1951 the entry is made evidence without further enquiry as to his right of the status of the person who is recorded as an occupant, under section 3 of the U.P. Land Reforms (Supplementary) Act, 1952, a person who claims the status of an asami or an adhivasi must establish that he was in "cultivatory 623 possession" of the land during the year 1359 Fasli.
The expression " cultivatory possession" is not defined in the Act, but the Explanation clearly implies that the claimant must have a lawful right to be in possession of the land, and must not belong to the classes specified in the explanation.
"Cultivatory possession" to be recognized for the purpose of the Act must be lawful, and for the whole year 1359 Fasli.
A trespasser who has no right to be in possession by merely entering upon the land forcibly or surreptitiously cannot be said to be a person in "cultivatory possession" within the meaning of section 3 of U.P. Act 31 of 1952.
We are of the view that the Allahabad High Court was right in holding in Ram Krishna vs Bhagwan Baksh Singh(1) that a person who through force inducts himself over and into some land and succeeds in continuing his occupation over it cannot be said to be in cultivatory possession of that land so as to invest him with the rights of an asami or an adhivasi, and we are unable to agree with the subsequent judgment of a Full Bench of the Allahabad High Court in Nanhoo Mal vs Muloo and others(2) that occupation by a wrongdoer without any right to the land is "cultivatory possession" within the meaning of section 3 of the U.P. Act 31 of 1952.
A person who has no right to occupy land may rely upon his occupation against a third person who has no better title, but he cannot set up that right against the owner of the land.
It must be remembered that by section 3 of U.P. Act 31 of 1952 the Legislature conferred rights upon persons in possession of land against the tenure holders, and in the absence of any express provision, we are unable to hold that it was intended by the Act to put a premium upon forcible occupation of land by lawless citizens.
We have no doubt therefore that by forcibly occupying the land after 1358 Fasli, Pritam Singh could not acquire as against the bhumidhar of the land the rights of an adhivasi by virtue of section 3 of U.P. Act 31 of 1952.
Counsel for the appellants contended that the finding recorded by the First Appellate Court that Pritam Singh was in "cultivatory possession" in 1359 Fasli was binding upon the High Court in Second Appeal.
For reasons already set out, possession of a person in wrongful occupation cannot be deemed cultivatory possession.
Again the Appellate Judge in arriving at his conclusion ignored very important evidence on the record, and on that account also the conclusion was not binding on the High Court.
Pritam Singh 's name was recorded in the khasra for the year 1359 Fasli as sub tenant "without settlement of rent".
Pritam Singh did not offer to give evidence at any stage of the trial before the Assistant Collector, and it was not his case that he had entered into any contract of sub tenancy with Tota Ram and Lajja Ram.
The entry which records him as a sub tenant of Tota Ram and Lajja Ram for the year 1359 Fasli is on his own case (1) (2) I.L.R. [1963] All. 751.
624 untrue.
There is further no oral evidence in support of the case of Pritam Singh that he was in actual "cultivatory possession" of land and the entry relied upon by him does not support his case.
To get the benefit of section 3 of U.P. Act 31 of 1952, it had to be established that Pritam Singh was in actual cultivatory possession of the land and that fact is not established by direct evidence of possession, nor is it established by the entry relied upon by him.
The conclusion of the learned Appellate Judge that Pritam Singh was in "cultivatory possession" was partially founded on the conclusion recorded by him that in 1356 Fasli Pritam Singh was in possession of the land.
We have already pointed out that in so concluding he misread the khasra entry for 1356 Fasli and gave no effect to the khasra Baralisala which showed that Pritam Singh was not in possession of the land till the end of 1358 Fasli.
The learned Judge also inferred that because it was stated by Sri Ram the first plaintiff and his witness Maharaj Singh that no crops were cultivated during the Kharif season and as the khasra for 1359 Fasli showed that Bajra was sown in one of the plots in 1359 Fasli and gram was raised in all the plots, Pritam Singh must have been in possession as a sub tenant and must have cultivated the land in the Kharif season of 1.359 Fasli.
This was, in our judgment, a far fetched inference.
The Appellate Judge also did not refer to other evidence to which pointed attention was directed in support of his conclusion, by the Assistant Collector Agra: for instance, Banwari Lal, Naib Registrar examined on behalf of the plaintiffs had clearly stated that Pritam Singh was not in possession of the land prior to 1359 Fasli and that Tota Ram who was examined as a witness stated that Pritam Singh was not in possession of the land and he had not given the land to Pritam Singh on lease, and that he did not receive rent from Pritam Singh.
We are unable, therefore, to hold that a conclusion arrived at only from an entry in the revenue records which does not prima facie support the case of Pritam Singh, that he wrong fully trespassed upon the land and cultivated it may be regarded as conclusive in Second Appeal.
The High Court was, in our judgment, right in reaching the conclusion that Pritam Singh was not in "cultivatory possession" of the land in 1359 Fasli within the meaning of section 3 of Act 31 of 1952.
Counsel for the appellants finally contended that the High Court was incompetent in this suit to grant a decree for possession of the land to the plaintiffs.
Counsel submitted that a suit for possession, even against a trespasser, could lie only in the Revenue Court and not in the Civil Court, and the High Court by allowing amendment of the plaint in the Second Appeal before it could not assume to itself the jurisdiction which the Civil Courts do not possess.
Our attention was not invited to any provision which enacts that even against a rank trespasser the Civil Court may not pass a decree, in favour of an owner of the land, in ejectment in respect of agricultural land.
But even assuming that the statute 625 law in the State of U.P. warrants that submission, we think that the High Court had jurisdiction in the circumstances of the Present case to allow amendment of the plaint and to grant a decree for possession.
it may be recalled that the plaintiffs had originally tiled a suit for a declaration of title and for injunction restraining Pritam Singh from interfering with their possession.
The land was at the date of the suit under attachment by the order of the Magistrate, Ist Class, Agra, in proceedings under section 145 of the Code of Criminal Procedure, started by Pritam Singh, and the Magistrate had directed the parties to establish their possession or right to possession in a competent Civil Court.
A suit for declaration and injunction in that state of affairs was Properly filed.
If the plaintiffs established their title to the land, they could claim an order from the Criminal Court for delivery of Possession, and an injunction restraining Pritam Singh from interfering with their possession was an appropriate relief.
But it ap pears that pursuant to the order of the First Appellate court Pritam Singh obtained possession from the Criminal Court and hereafter the plaintiffs amended the plaint with the leave of the High Court and a decree for possession was claimed.
When the High Court held in favour of the plaintiffs and rejected the claim made by Pritam Singh, in our judgment, the High Court was justified, and indeed bound, to avoid giving a fresh lease of life to his litigation, to make an order consistently with the rights declared by it, since Pritam Singh had during the pendency of the suit managed to obtain possession of the land from the Court Officer who was in possession of the land.
A party who is defeated on the merits of the dispute may not by securing an order from another Court during the pendency of a ,suit be permitted to displace the jurisdiction of the Civil Court to, try the suit which was within its competence when the suit was filed.
The appeal therefore fails and is dismissed with costs.
Appeal dismissed.

summary/full:
The respondents purchased the land in dispute from the bhumidhars thereof, but 'P ' (predecessor in interest of the appellants) claimed to be in possession of the land and a dispute was raised under section 145 of the Code of Criminal Procedure.
The Magistrate attached the land and relegated the parties to a suit.
The respondents filed a plaint seeking a declaration of their rights and removal of 'P 's name from the record of rights.
The trial court after getting a finding from the Revenue Court granted a decree to the respondents.
The first Appellate Court however decided in favour of 'P ' and on the basis of that finding 'P ' got possession from the criminal court.
The respondents went in second appeal to the High Court which decided in their favour and gave them a decree for possession of the land after allowing them to amend their plaint by adding a prayer for possession.
The appellants came to this Court and urged: (i) 'P ' was recorded as an occupant ' in the khasra of 1356 Fasli and therefore under section 20(b) of the U.P. Zamindari Abolition and Land Reforms Act 1 of 1951 he was an adhivasi, (ii) 'P ' was recorded as in 'cultivatory pos session ' of the land in 1359 Fasli and on that ground also he was an adhivasi; (iii) the High Court was bound by the findings of the first Appellate Court that the appellant was an 'occupant ' in 1356 Fasli and in cultivatory possession in 1359 Fasli: (iv) A suit for possession even against a trespasser could lie only in the 'Revenue Court and not in the Civil Court, and the High Court by allowing amendment of the plaint in the second appeal could net assume to itself jurisdiction which civil courts do not possess.
HELD: (i) The entry in the Khasra of 1356 Fasli on which the appellants relied did not fulfil the requirements of s 20(b) of Act 1 of 1951.
'P ' was not shown in the entry as 'Kahiz ' or 'Snihi ' etc.
There was also strong evidence which was relied on by the Revenue Court but not considered by the first Appellate Court that the name of 'P ' was surreptitiously entered in the Khasra of 1356 P.
The appellant 's case under section 20(b) of the Abolition Act therefore failed.
[621A F] Amba Prasad vs Abdul Noor Khan & Ors., ; , referred to.
618 (ii) The appellants ' case under section 3 of U.P. Act 31 of 1952 also could not be sustained.
To get the benefit of the section it had to be.
established that P was in actual cultivatory possession of the land in 1359 F and that fact had not been established by direct evidence of possession, nor was it established by the entry relied on by him.
A person who has no right to occupy land may rely upon his occupation against a third person who has no better title, but he cannot set up that right against the owner of the land.
Section 3 conferred rights upon persons in possession of land against the tenure holders, it was not intended to put a premium upon forcible occupation of land by landless citizens.
Possession of a person in wrongful occupation could not be deemed to be 'cultivatory possession ' within the meaning of the section.
[622F 623F] Ram Krishna vs Bhagwan Baksh Singh, , ap proved.
Nanhoo Mal V. Muloo and Ors., I.L.R. [1963] All. 751, disapproved.
(iii) The High Court was not bound in the present case by the, findings of the first Appellate Court as the latter had ignored important evidence on record which proved that the entries relied on by 'P ' were not genuine.
[623G] (iv) The High Court rightly granted to the respondents a decree for possession after allowing the respondents to add a prayer for possession to their plaint.
When the High Court held in favour of the plaintiffs respondents and rejected the claim made by 'P ' it was justified and indeed bound, to avoid giving a fresh lease of life to the litigation and to make an order consistently with the rights declared by it, since 'P ' had during the pendency of the suit managed to obtain possession of the land from the Court Officer who was in possession of the land.
A party who is defeated on the merits of the dispute! may not by securing an order from another court during the pendency of the suit be permitted to displace the jurisdiction of the civil court to try the suit which was within its competence when the suit was filed.
[625D E]