judgement:
Appeal Nos. 735 and 736 of 1966.
Appeals by special leave from the judgment and decree dated March 26, 1965 of the Allahabad High Court, Lucknow Bench in Second Execution Decree Appeals Nos. 3 and 4 of 1961.
J. P. Goyal and section P, Singh, for the appellant (in both the, appeals).
233 C. B. Agarwala and K. B. Gupta, for the respondent (in both the appeals).
The Judgment of the Court was delivered by Bachawat, J.
The appellant filed suit nos.
87 of 1948 and 2/12 of 1948 in the court of the Assistant Collector, 1st Class, Pratapgarh, (a revenue court) against the respondent and 8 others persons under sections 60, 61 and 180 of the U.P. Tenancy Act (U.P. Act XVII of 1939) claiming a declaration that the defendants had no right to the suit lands and a decree for possession in case the defendants were found to be in possession thereof.
The suits were decreed in 1948.
The appellant took symbolical possession of the lands in execution of the decrees.
Appeals against the decrees filed by the respondent and other defendants were dismissed by the Additional Commissioner, Faizabad.
The defendants filed second appeals against the decrees.
During the pendency of the appeals rules 4 and 5 of the Uttar Pradesh Zamindari Abolition and Land Reforms Rules 1952 came into force.
The Board of Revenue held that in view of rules 4 and 5 the pending appeals as also the suits had abated.
In 1955 the respondent filed applications for restitution of the lands under section 144 of the Code of Civil Procedure in court of the Assistant Collector, 1st Class, Pratapgarh.
The appellant con.
tested the application.
One of the issues arising on the application was whether the appellant had acquired Bhumidari rights.
The Assistant Collector referred this issue to the Civil Court for decision.
He refused to recall the order of reference in spite of the respondent 's plea that he had no power to pass the order as no question of proprietary title had arisen.
On May 7, 1958 the civil court answered the issue in the negative.
On February 18, 1958 the Assistant Collector allowed the application for restitution and directed that the respondent be put in possession of the lands.
The appellant filed appeals against the orders dated February 18, 1958 As he was not certain about the proper forum of the appeals he took the precaution of filing the appeals in the revenue court as also in the civil court.
On October 23, 1959 the Additional Commissioner, Faizabad Division, held that the Revenue Court had no jurisdiction to entertain the appeals and that the appeals lay to the civil court under sections 286(4) and 265(3) of U.P. Tenancy Act.
Accordingly he returned the memoranda of appeals for presentation to the proper court.
The appellant filed revision petitions against the orders before the Board of Revenue, In the meantime the appeals filed before the civil court came up for hearing.
The respondent submitted to the jurisdiction of the civil court.
He did not raise the contention that the, civil court had no jurisdiction to entertain the, appeals.
On 234 November 12, 1960 the Additional Civil Judge,, Pratapgarh, allowed the appeals and dismissed the applications for restitution.
He held that (1) the appellant was in possession of the lands on the dates of the institution of the suits; (2) the board of revenue had no power to abate the suits or to set aside the decree passed therein, and (3) the application for restitution was not maintainable as the appellant had not obtained possession of the lands in execution of any decree which had been reversed or set aside.
In view of this decision, the appellant did not proceed with the pending revision petitions before the board of revenue and on November 18, 1960 the revision petitions were dismissed.
On February 1, 1961 the respondent filed second appeals in the High Court against the appellate orders of the civil court dated November 12, 1960.
In the original memorandum of appeal, he did not take the plea that the civil court had no jurisdiction to entertain the appeals.
For the first time on January 24, 1964, he took this plea by adding a new ground in his memorandum of appeal.
The High Court held that (1) the appellant was in possession of the lands before the passing of the decree; (2) the suits had not abated and the Board of Revenue had no jurisdiction to set aside the proceedings, in the suits ' and (3) the applications for restitution were not maintainable.
The High Court, however, held that (1) appeals against the orders for restitution lay to the revenue court, (2) the civil court had no jurisdiction to entertain the appeals and (3) the respondent was not estopped from raising the contention.
Accordingly on March 26, 1965 the High Court allowed the second appeals, set aside the order of the Additional Civil Judge and returned the memoranda of appeals for presentation to the proper court.
The appellant has filed the present appeals after obtaining special leave.
On behalf of the appellant it is argued that (1) the appeal from the order of the Assistant Collector dated February 18, 1959 lay to the civil court and not to the revenue court (2) in the circumstances of the case, and in view of section 289(2) of the U.P. Tenancy Act, the respondent was precluded from raising the objection that the appeals did not lie to the civil court.
It is common case that suits nos.
87 of 1948 and 2/12 of 1948 Were of the nature specified in Group B of the fourth schedule to the U.P. Tenency Act.
In view of section 265(2) read with section 271(2) appeals from orders in proceedings under section 14 4 of the Code of Civil Procedure arising out of, the two suits lay to the revenue court.
The appeals did not lie to the civil court under sections 265(3) and 286(4) read with section 271(2) as no question of jurisdiction was decided by the Assistant Collector nor was any question of proprietary title referred to or decided by the civil court.
But the more important question is whether having regard to the 235 scheme of the U.P. Tenancy Act and the circumstances of the case, the objection as to the lack of competence of the civil court to entertain the appeals could be raised in the High Court.
The U.P. Tenancy Act 1939 consolidates and amends the law relating to agricultural tenancies and other matters connected therewith in Agra and Oudh.
It repealed the Agra Tenancy Act, 1926 and the Oudh Rent Act 1886.
Chapter XIV of the Act deals with the procedure and jurisdiction of courts.
Section 242 provides that certain suits and applications are cognizable by the revenue courts only.
The chapter provides for appeals and revisions.
No appeal lies from any decree or order passed by any court under the Act except as provided in the Act (section 263).
In some cases an appeal lies to a revenue court; in other cases the appeal lies to the civil court.
The High Court has no revisional power under section 276 in a case in which no appeal lies to the civil court.
It is often a question of extreme nicety whether a suit, application or appeal is cognizable by the revenue court or by the civil court.
Sections 289, 290 and 291 deal with objections regarding the proper forum.
Section 290 provides that where in a suit instituted in a civil or revenue court, an appeal lies to the district judge or to the High Court, an objection that the suit was instituted in the wrong court shall not be entertained by the appellate court unless such objection was taken in the court of the first instance; and the appellate court shall dispose of the appeal as if the suit has been instituted in the right court.
The section closely resembles section 21 of the Code of Civil Procedure and is a recognition of the princi ple that an objection as to the proper forum for the trial of a suit may be waived.
Section 291 treats the objection as technical and provides that even where the objection was taken in the court of the first instance, the appellate court may dispose of the appeal as if the suit had been instituted in the right court.
It may declare any court to be competent to try the suit and may remand the suit for fresh trial, and the competence of the trial cannot be ques tioned later.
With a view to avoid conflicts of jurisdiction section 289 provides for reference to the High Court.
Section 289 is as follows : "289(1) Where either a civil or revenue court is in doubt whether it is competent to entertain any suit, application or appeal, or whether it should direct the plaintiff, applicant or appellant to file the same in a court of the other description, the court may submit the record with a statement of the reasons for its doubt to the High Court; (2) Where any suit, application or appeal, having been rejected either by a civil court or by a revenue 236 court on the ground of want of jurisdiction, is subsequently filed in a court of the other description, the latter court, if it disagrees with the finding of the former, shall submit the record, with a statement of the reasons for its disagreement to the High Court; (3) In cases falling under subsection (1) or subsection (2) if the court is a revenue court subordinate to the collector, no reference shall be made under the foregoing provisions of this section except with the previous sanction of the collector; (4) On any such reference being made , the High Court may order the court either to proceed with the case, or to return the plaint, ' application or appeal for presentation of such other court as it may declare to be competent to try the same; (5) The order of the High Court shall be final and binding on all courts, subordinate to it or the Board.
" Section 289 vests in the High Court a special jurisdiction.
The decision of the High Court given ' on a reference to it under section 289 is binding on all courts.
A reference can be made under section 289(1)if any court doubts its own competence to entertain any proceeding.
The reference under section 289(1) is optional.
Without making any reference the court may refuse to entertain the proceeding on the ground of want of jurisdiction.
But the court of the other description in which the proceeding is subsequently instituted is not bound by this finding, see Nathan vs Harbans Singh(1).
Before the enactment of section 289(2) if it disagreed with the finding, it could reject the proceeding on the ground that the matter was cognizable by the other court, As neither court was bound by the finding of the other, the litigant could not get relief in any forum.
Section 289(2) has been specially enacted to avoid such a deadlock.
In such a situation, section 289(2) compels the court to refer the matter to the High Court and to obtain a Provisions corresponding to sections 290, 291 and 289(1) were contained in sections 124 A, 124B, 124C and 124D of the Oudh Rent Act 1886 and sections 268, 269 and 267(1) of the Agra Tenancy Act, 1926.
It seems that Oudh Rent Act, 1886 did not contain any provision corresponding to section 289(2).
The absence of such a provision seriously hampered the administration of justice.
In numerous cases under the Oudh Rent Act, after a suit, application or appeal was rejected by a civil court or revenue court on the ground of want of jurisdiction, the court of the other descrip (1) A.I.R. 1930 All. 264, decision which will bind all the courts.
237 tion where the proceeding was subsequently filed came to the opposite conclusion and held that the matter was within the cognizance of the former court.
The decision of the court of one description including the decision of the High Court exercising appellate or revisional power over that Court was not binding upon the court of the other description.
Such a situation led to great injustice.
The litigant was bandied about from court to court and he could not get any relief anywhere.
The Oudh Chief Court mitigated the evil by applying the doctrine that a party litigant could not approbate and reprobate in respect of tile same matter.
A party litigant may not be allowed to take inconsistent positions in court to the detriment of his opponent at successive stages of the same proceeding or in a subsequent litigation growing out of the judgment in the former proceeding, see Bigelow on Estoppel, 6th Ed.
783, 789, Mohammad Mehdi Khan V Mussammat Sharatunnissa(1).
On this principle it was held in Mahadeo Singh vs Pudai Singh(2) that where a revenue court upheld the plea that it had no jurisdiction to entertain a suit, the party putting forward the plea would be precluded from contending that the civil court could not entertain the suit.
Likewise in Saira Bibi vs Chandrapal Singh (8) it was held that when an appeal was originally instituted properly in the revenue court but on objection being raised by a party was dismissed on the ground that the appeal did not lie to that court, it was not open to the party to raise the objection that the appeal could not be entertained by the civil court.
This form of estoppel arises when the litigant takes in consistent pleas as to jurisdiction in different courts.
It cannot be pressed into service, where, as in the present case, the court in which the proceeding was originally filed suo motu raised the objection as to jurisdiction.
In the present case it does not appear that the respondent raised before the revenue court the objection that it was not competent to entertain the appeals.
The doctrine of approbate and reprobate cannot be invoked to, preclude the respondent, from raising the objection that the appeals did not lie to the civil court.
But the effect of upholding his objection is that the appellant is deprived of his right of appeal altogether.
His appeals cannot be entertained either by the civil court or by the revenue court.
Section 289(2) is intended to prevent such grave miscarriage of justice.
Section 289(2) reenacts the provision of section 267(2) of the Agra Tenancy Act 1926.
The object of section 289(2) is to avoid a deadlock between the civil and the revenue courts on the question of jurisdiction, and its provisions should receive a liberal construction.
Section 289(2) applies whenever any suit, application or appeal having been rejected either by the civil court or revenue (1) 3 Oudh Cases, 32, Luck, 159,166.
(3) A.I.R. 1931 Oudh 123.
238 court on account of want of jurisdiction is subsequently filed in the court of the other description and the latter court disagrees with the finding of the former.
In such a case, a reference to the High Court is compulsory and the conflict of opinion is resolved by a decision of the High Court which is binding on all courts.
A court subordinate to the collector cannot make the reference without the previous sanction of the collector under section 289(3).
It is implicit in section 289(3) that if the collector refuses to give the sanction, the case will proceed as if there is no dis agreement with the finding of the former court.
In a case falling within section 289(2), only the court in which the proceeding is subsequently instituted can disagree with the finding of the former court on the question of jurisdiction.
If it so disagrees, it must refer the matter to the High Court; and only the High Court on such a reference can override the finding.
No other court can disagree with the finding and make the reference.
In our opinion, if no such reference is made, the finding of the former court on the question of jurisdiction becomes final and conclusive; and the objection that it is erroneous cannot be entertained by the appellate or revisional court or any other court.
In the present case the respondent did not raise any objection before the Additional Civil Judge that the civil court was not competent to entertain the appeals.
The Additional Civil Judge did not make any reference to the High Court under section 289(2).
He decided the appeal on the merits and did not disagree with the finding of the revenue court on the question of jurisdiction.
Having regard to this decision the appellant did not proceed with the revision petitions filed by him against the orders of the revenue court on the question of jurisdiction In these circumstances, it was not open to the respondent to raise the objection in the High Court that the civil court was not competent to hear the appeals.
In view of the fact that no reference.
under section 289(2) was made, the finding of the revenue court that the civil court was competent, to entertain the appeals could not be challenged in the High Court.
The case must be decided on the footing that the Additional Civil Judge, Pratapgarh, was competent to enter tain the appeals.
On the merits the respondent has no case.
The Additional Civil Judge found that the appellant was in possession of the lands on the dates of the institution of the suits.
The High Court agreed with this finding.
We see no reason for setting aside this concurrent finding of fact.
The appellant did not obtain possession of the lands by executing the decrees passed in the two suits.
Even assuming that the suits had abated and the decrees 239 ed therein had been set aside or reversed, no case for restitution.
of the lands under section 144 of the Code of Civil Procedure is made out.
The Additional Civil Judge rightly dismissed the applications under, section 144.
In the result, the appeals are allowed with costs, the orders of the High Court are set aside and the orders passed by the: Additional Civil Judge, Pratapgarh, are restored.

summary/full:
The appellant instituted two suits in the Court of Assistant Collector (a Revenue, Court) against the respondent under sections 60, 61 and 180 of the U.P. Tenancy Act, 1939.
The suits were decreed, and the appellant took symbolical possession of the lands.
The Assistant Commissioner.
affirmed the decrees, and during the pendency of the respondent 's second appeals in the High Court, the Uttar Pradesh Zamindari Abolition & Land Reforms Rules, 1952 came into force.
The Board of Revenue held that in view of the Rules.
the pending appeals as also the suits had a ate.
The respondent filed applications for 'restitution of the lands under section 114 C.P.C. in the Court of Assistant Collector.
The Assistant Collector referred the issue whether the appellant had acquired Bhumidari rights to the civil court.
He refused to recall the 'reference in spite of the respondent 's Plea that he had no power to pass the order as no question of pro prietary title bad arisen.
The civil court answered the issue in the negative, and the Asstt.
Collector allowed the applications for restitution.
As the appellant was not certain about the proper forum of appeals against these orders of the Assistant Collector, he filed anneals in the revenue court as also in the civil court.
The Assistant Commissioner held that the revenue court had no Jurisdiction to entertain appeals and the appeals lay to the civil court under sections 286(4) and 265(3) off the U.P. Tenancy Act.
The appellant filed revision petitions against the orders before the Board of Revenue.
In the meantime the appeals filed before the civil court came up for hearing:.
The respondent submitted to the jurisdiction of the civil court, and did not contend that the civil court had no Jurisdiction to entertain the appeals.
The Civil Judge allowed the anneals and dismissed the application for restitution.
Because of this decision.
the appellant did not proceed with the pending revision petitions 'before the Board of Revenue and there the petitions were dismissed.
The respondent filed second appeals in the High Court against the appellate orders of the civil court, without taking the plea that the civil court 'had no Jurisdiction to entertain the anneals.
but later on he took the plea by adding a new ground.
The High Court held that the appeals lay to the revenue court and the respondent was not estopped from raising the contention.
In appeals to this Court the appellant contended that the anneals lay to the civil court and not for the revenue court and in the circumstances of this case, and in view of section 289(2) of the U.P. Tenancy Act.
the respondent was precluded from raising the objection that the appeals did not lie to the civil court.
Allowing the appeals this Court.
HELD : In this case the doctrine of approbate and reprobate could not be pressed into service to preclude the respondent from raising the objection that the appeals did not lie to the civil court as the court in which the proceeding were originally filed suo motu raised the objection.
232 But the effect of upholding his objection would be that the, appellant would be deprived of his right of appeal altogether, and section 289(2) of the U.P, Tenancy Act is intended to prevent such grave miscarriage of justice.
[237 F] Section 289(2) applies whenever any suit, application or appeal having been rejected either by the civil court or revenue court on account of want of jurisdiction is subsequently filed in the court of the other description and the latter court disagrees with the finding of the former.
In such a case,, a reference to the High Court is compulsory and the conflict of opinion is resolved by a decision of the High Court which is binding on all courts.
A court subordinate to the Collector cannot make the reference without the previous sanction of the Collector under section 289(3).
It is implicit in section 289(3) that if the Collector refuses to give the sanction, the case will proceed as if there is no disagreement with the finding of the former court.
[237 H] In a case falling within section 289(2), only the court in which the proceeding is subsequently instituted can disagree with the finding of the former court on the question of jurisdiction.
If it so disagrees, it must refer the matter to the High Court; and only the High Court on such a reference can override the finding.
No other court can disagree with the finding and make the reference.
If no such reference is made, the finding of the former court on the question of jurisdiction becomes final and conclusive; and the objection that it is erroneous cannot be entertained by the appellate or revisional court or any other court.
[238 D] Having regard to the circumstances of this case, it was not open to the respondent to raise the objection in the High Court that the civil court was not competent to hear the appeals.
In view of the fact that no reference under section 289(2) was made, the finding of the revenue court that the civil court was competent to entertain the appeals could not be challenged in the High Court.
The case must be decided on the footing that the Civil Judge was competent to entertain the appeals.
[238 F] On the merits the respondent had no case.
The Civil Judge found that the appellant was in possession of the lands on the dates of the institution of the suits.
The High Court agreed with this finding.
No ground has been made for setting aside this concurrent finding of fact.
The appel lant did not obtain possession of the lands by executing the decrees passed in the two suits.
Even assuming that the suits had abated and the decrees passed therein had been set aside or reversed, no case for restitution of the lands under section 144 of the Code of Civil Procedure was made out.
The applications under section 144 C.P.C., were rightly rejected.
Nathan vs Harbans Singh, A.I.R. 1930 All. 264, Mohammad Mehdi Khan vs Mussammat Sharatunnissa, 3 Oudh Cases 32, 35 37, Mahadeo Singh vs Pudal Singh, A.I.R. 1931 Oudh 123 and Saira Bibi vs Chandrapal Singh, I.L.R. 4 Luck.
150, 166, referred to.


judgement:
Appeal No. 2065 of 1968.
Appeal from the judgment and order dated September 18, 1968 of the Calcutta High Court in F.M.A. No. 381 of 1967.
B. Sen, B. P. Maheshwari, A. N. Parikh and section M. Jain, for the appellant.
D. Narsaraju, R. H. Dhebar and section P. Nayar, for respondents Nos.
and 2.
The Judgment of the Court was delivered by Hidayatullah, C.J.
This is an appeal against the judgment of the High Court of Calcutta dismissing a writ petition filed by the appellant Debesh Chandra Das.
This appeal is by certificate against the judgment dated September 18, 1968.
The appellant is a member of the Indian Civil Service.
He qualified in 1933 and arrived in India in 1934 and was allotted to Assam.
In 1940 he came to the Government of India and became in turn Under Secretary and Deputy Secretary, Home Ministry.
In 1947 he went back to Assam where he held the post of Development Commissioner and Chief Secretary.
In 1951 he again came to the Government of India as Secretary, Public Service Commission.
In 1955 he became Joint Secretary to the Government of India and continued to hold that post till 1961.
From 1961 to 1964 he was Managing Director of Central Warehousing Corporation.
On July 29, 1964, he was appointed Secretary, Department of Social Security with effect from July 30, 1964 and until further, orders, On March 6, 1965 the, 222 Appointments Committee of the Cabinet approved the proposal to continue him as Secretary, Department of Social Security.
He continued in that Department, which is now renamed as the Department of Social Welfare.
On June 20, 1966 he received a letter from the Cabinet Secretary which was to the following effect: "My dear Debesh: For sometime, the Government has been examin ing the question of building up a higher level of administrative efficiency.
This is much more important in the context of the recent developments in the country.
The future is also likely to be full of problems.
In this connection, the Government examined the names of those who are at present occupying top level administrative posts with a view to ascertaining whether they were fully capable of meeting the new challenges or whether they should make room for younger people.
As a result of this examination, it has been decided that you should be asked either to revert to your parent State or to proceed on leave preparatory to retirement or to accept some post lower than that of Secretary of Govt.
I would be glad if you would please let me know immediately as to what you propose to do so that further action in the matter may be taken.
Yours sincerely, Sd/ (DHARMA VIRA)".
He asked for interview with the Cabinet Secretary and the Prime Minister and represented his case but nothing seems to have come of it.
On September 7, 1966 he received a second letter from the Cabinet Secretary which said inter alia as follows : ". .
I am now directed to inform you that after considering your oral and written representations in the matter Government has decided that your services may be placed at the disposal of your parent state, namely, Assam.
In case, however, you like to proceed on leave preparatory to retirement, will you please let me know ?.
" The appellant treated these orders as reduction in his rank ,and filed a writ petition in the High Court of Calcutta on September 19, 1966.
According to him the order amounted to a reduction in rank since the pay of a Secretary to the Government of India (I.C.S.) is Rs. 4,000 and the highest pay in Assam (I.C.S.) 22 3 is Rs. 3,500.
There being no equal post in the Government of Assam his reversion to the Assam Service meant a reduction not only in his emoluments but also in his rank.
He also contended that he held a 5 years ' tenure post and the tenure was to end on July 29, 1969 but was wrongly terminated before the expiry of five years.
He also alleged that there was a stigma attached to his reversion as was clear from the three alternatives which the letter of the Cabinet Secretary gave him.
The highest post in the Government of Assam being equivalent to the Joint Secretary of Government of India, his reversion to the highest post, i.e. Chief Secretary to the Government of Assam, amounted to a reduction in rank.
He contended, if this was the case, the procedure under article 311(2) of the Constitution ought to have been followed and without following that procedure the order was not sustainable.
When the appellant filed the writ petition he was appointed as a Special Secretary on October 15, 1966 but under one of his juniors.
It may be mentioned here that the appellant is next only to the Cabinet Secretary in the matter of seniority.
He also received a letter from the Government of India dated October 20, 1966 in which it was said that Government was considering giving him a post equal to that of a Secretary.
The writ petition was dismissed by Justice A. N. Ray on May 19, 1967.
The following day the appellant was again riposted to Assam but he filed an appeal and obtained a stay.
On March 21, 1968 he was appointed Secretary in the Department of Statistics in the Central Government.
The appeal was heard by Justice P. B. Mukharji and Justice A. N. Sen who differed, the former was in favour of dismissing the appeal while the latter was in favour of allowing it.
The appeal was then laid before Sankar Prosad Mitra, J. who agreed with Justice Mukherji and the appeal was dismissed on September 18, 1968.
On September 20, 1968 the appellant was reposted to Assam.
He, however, filed the present appeal and has proceeded on leave although no orders on leave application seemed to have been passed when we heard the appeal.
In this appeal also, it is contended that the reversion of the appellant to the Assam Service amounts to a reduction in rank.
This is on the ground that he held a higher post in the Government of India and there is no post equal to it under the Assam Government.
The post of the Chief Secretary in the Assam Government is equal to the post of a Joint Secretary in the Government of India and his reversion would therefore indirectly mean a reduction in his rank and also in his emoluments because the highest post in Assam does not carry a salary equal to that of a Secretary in the Government of India.
He also contends that under article 311(2) an enquiry had to be made and he had to be 224 given a chance of explaining his case in the reduction in rank amounted to a penalty.
He contends that the letters of the Cabinet Secretary speak for themselves and clearly show that he was being offered a lower post even in the Government of India if he was to continue here denoting thereby a desire to reduce him in rank.
The letters also speak of his unsatisfactory work and, therefore, cast a stigma on him and therefore his reversion must be treated as a penalty and if the procedure laid down under article 311(2) is not followed, the order of the Government of India could not be sustained.
This, in short, is the case which he had put up before the High Court and has now put up before us.
The Government of India contends that he was on deputation and the deputation could be terminated at any time; that his orders of appointment clearly show that the appointments were "until further orders" and that he had no right to continue in the Government of India if his services were not required and that his reversion to his parent State did not amount either to any reduction in rank or a penalty, and, therefore, the order was quite legal.
Prior to 1946 the members of the Indian Civil Service were in a Civil Service of the Secretary of State.
As a result of a conference between Chief Ministers and the Government of India an All India Administrative Service was constituted in October 1946.
This agreement was entered into under section 263 of the Government of India Act, 1935.
The Indian Administrative Service was common to the Centre and the Provinces.
On January 25, 1950 rules were framed under sections 241(2) and 247 of the Government of India Act, 1935.
These rules were known as the Indian Civil Administrative (Cadre) Rules, 1950.
Under these rules cadres were constituted.
A 'cadre ' is defined in Fundamental Rule 9(4) as the strength of a service or a part of a service sanctioned as a separate unit.
In these rules 'cadre officer ' meant an officer belonging to any of these categories specified in rule 4 and 'cadre post ' meant any duty post included in the Schedule to the Rules.
In rule 4, it was provided that every cadre post shall be filled inter alia by an officer who is a member of the Indian Civil Service. ' In the Schedule Assam was to have 20 senior posts under the Provincial Government, 6 senior posts under the Central Government and 37 posts for direct recruitment, and junior posts and certain services.
After 1954 a number of Rules were framed and we are concerned in this case with the Indian Administrative Service (Cadre) Rules 1954, Indian Administrative Service (Fixation of Cadre Strength) Regulations 1955 and Indian Administrative Service (Pay) Rules 1954.
Under the Pay Rules were shown the posts carrying pay above the time scale pay in the Administrative Service under the State Governments.
In Assam there were 225 four such posts.
Chief secretary (Rs. 3,000), Member, Board of Revenue, Commissioners and Development Commissioners (Rs. 2500 125/2 2750).
These four were the Only posts above the time scale and the highest pay possible was that of a Chief Secretary carrying Rs. 3,000/ p.m. [vide All India Service Manual (1967) p. 2481.
The lower posts in Assam were; Secretaries, Additional Secretaries, Joint Secretaries etc.
who were on a time scale with ceiling of Rs. 2,250 p.m. (ibid p. 263) As against this the posts carrying pay above the time scale or special pay in addition to pay in the time scale under the Central Government when held by Indian Administrative Service men were Secretaries to the Government of India with a pay of Rs. 3,500/ (Rs. 4,000 for Indian Civil Service men) and so on in a downward position There was no separate cadre in the Government of India as defined in the Fundamental Rule mentioned above.
There were only cadres in the States.
Posts beyond the State cadre limit were only to be found in the Government of India.
The Indian Administrative Service (Cadre) Rules 1954 provided as elaborate machinery for getting persons to fill the posts in the Government of India. ' Similarly, the Indian Administrative Service (Fixation of Cadre Strength) Regulations 1955 provided for these matters.
Rule 3 of the Indian Administrative Service (Cadre) Rules provided as follows; "3.
"Constitution of Cadres. (1) There shall be constituted for each State or group of States an Indian Administrative Service Cadre.
(2) The cadre so constituted for a State or a group of States is hereinafter referred to as a 'State Cadre ' or, as the case may be, a 'Joint Cadre.
Rule 4 next provided : "Strength of Cadres. (1) The strength and composition of each of the cadres constituted under rule 3 shall be as determined by regulations made by the Central Government in consultation with the State Governments in this behalf and until such regulations are made, shall be as in force immediately before the commencement of these rules.
(2) The Central Government shall, at the interval of every three years, re examine the strength and composition of each such cadre in consultation with the State Government or the State Governments concerned and may make such alterations therein as it deems fit : Provided that nothing in this sub rule shall be deemed to affect the power of the Central Government to alter the strength and composition of any cadre at any other time; 226 Provided further that the State Government concerned may add for a period not exceeding one year and with the approval of the Central Government for a further period not exceeding two years, to a State or Joint Cadre one or more posts carrying duties or responsibilities of a like nature to cadre posts.
" Rule 6 then provided for deputation of cadre officers.
It reads as follows: "6.
Deputation of cadre officers. (1) A cadre.
officer may, with the concurrence of the State Government or the State Governments concerned and the Central Government, be deputed for service under the Central Government, or another State Government or under a company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by the Government.
(2) A cadre officer may also be deputed for service under (i) a Municipal Corporation or a Local Body, by the State Government on whose cadre he is borne, or by the Central Government with the concurrence of the State Government on whose cadre he is borne, as the case may be and (ii) an international Organisation, an autonomous body not controlled by the Government, or a private body, by the Central Government in consultation with the State Government on whose cadre he is borne: Provided that no cadre officer shall be deputed to any Organisation or body of the type referred to in item (ii) of this sub rule except with his consent.
" It may be pointed out here that 'permanent post ' is defined by the Fundamental Rules as a post carrying a definite rate of pay and sanctioned without limit of time and a 'temporary pose is defined as a post carrying definite rate of pay sanctioned for a limited time and a 'tenure post ' means a permanent post which an individual Government servant may not hold for more than a limited period.
All cadre posts were to be filled by cadre officers (rule 8), but temporary appointments of non cadre officers to cadre posts were possible under certain circumstances (rule 9).
Under the Indian Administrative Service (Fixation of Cadre Strength) Regulations 1955 Assam was to have a total of 117 cadre posts.
Of these, 55 were under the Government of Assam 227 and 22 senior posts were to be under the Central Government.
19 were promotion posts and 58 were to be filled by direct recruitment.
There were certain reserved posts for leave reserves, deputation reserves, training reserves and finally there were 'junior posts.
By the agreement which formed an annexure to the Indian Civil Administrative (Cadre) Rules 1950, Assam was to have 20 senior posts under the Provincial Government and 6 senior posts under the Central Government with some provision for direct recruitment posts, junior posts and reserves.
These posts denoted combined Service between the Central Government and the Assam Government.
The arrangement allowed an officer to go from one post to another whether under the Centre or the State but not a lower post unless the exigency of the case so demanded.
The posts in the Government of India were held in the ordinary course and were not deputation posts.
They were not as a part of the deputation reserves.
Under article 312, these services must be considered common to the Union and the State : tinder section 4 of the All India Services Act 1951 all rules in force immediately before the commencement of the Act and applicable to an All India Service were continued, thus the Indian Civil Administrative (Cadre) Rules 1950 continued to remain in force.
The position that emerges is that the cadres for the Indian Administratively are to be found in the States only.
There is no cadre in the Government of India.
A few of these persons are, however,intended to serve at the Centre.
When they do so they enjoy better emoluments and status.
They rank higher in the service and even in the Warrant of Precedence of the President.
In the States they cannot get the same salary in any post as Secretaries are entitled to in the Centre.
The appointments to the Centre are not in any sense a deputation.
They mean promotion to a higher post.
The only safeguard is that many of the posts at the Centre are tenure posts.
Those of Secretaries and equivalent posts are for five years and for lower posts the duration of tenure is four years.
Now Das held one of the tenure posts.
His tenure ordinarily was five years in the post.
He got his secretaryship on July 30, 1964, and was expected to continue in that post for five years, that is, till 29th July, 1969.
The short question in this case is whether his reversion to the Assam State before the expiry of the period of his tenure to a post carrying a smaller salary amounts to reduction in rank and involves a stigma upon him.
Reversion to a lower post does not per se amount to a stigma.
But we have here evidence that the reversion is accompanied by a stigma.
In the first letter issued to him on June 20, 1969 by Mr. Dharma Vira (Cabinet Secretary) it was said 228 Government was considering whether the persons at top level administrative posts were capable of meeting the new challenges or must make room for younger men.
The letter goes on to say that he may choose one of three alternatives : accept a lower post at the Centre, go back to a post carrying lower salary in Assam or take leave preparatory to retirement.
The offer of a lower post in Delhi is a clear pointer to the fact of his demotion.
It clearly tells him that his reversion is not due to any exigency of service but because he is found wanting.
The three alternatives speak volumes.
This was not a case of reverting him to Assam at the end of a deputation or tenure.
He can be retained in the Central Services provided he accepts a lower post, and the final alternative that he may retire clearly shows that the Government is bent upon removing him from his present post.
In the next letter this fact is recognised because on September 7, 1966 he is offered only two alternatives.
The alternative of a lower post is advisedly dropped because it discloses too clearly a stigma.
If any doubt remained it is cleared by the affidavit which is now filed.
Paragraphs 7 and 10 of the affidavit read as follows: "7.
With reference to the allegations made in paragraphs 13 to 23 of the said application, I make no admission in respect thereof except what appears from relevant records.
I further say that the performance of the petitioner did not come to the standard expected of a Secretary to the Government.
of India." "10.
The allegations made in paragraph 26 of the said application are correct.
I further say that the said representation was rejected by the Prime Minister in view of the standard of performance of the petitioner.
" Now it has been ruled again and again in this Court that re duction in rank accompanied by a stigma must follow the procedure of article 311(2) of the Constitution.
It is manifest that if this was a reduction in rank, it was accompanied by a stigma.
We are satisfied that there was a stigma attaching to the reversion and that it was not a pure accident of service.
It remains to see whether there was a reduction in rank.
There is no definition of reduction in rank in the Constitution.
But we get some assistance from rule 3 of the All India Services (Discipline and Appeal) Rules, which provides: "3 Penalties.
The following penalties , may, for good and sufficient reasons, and as hereinafter provided, be imposed on a member of the Service, namely 229 (iii) reduction in rank including reduction to a lower post or time scale, or to a lower stage in a time scale.
We have shown above that he was holding a tenure post.
Nothing turns upon the words of the notification 'Until further orders ' because all appointments to tenure posts have the game kind of order.
By an amendment of F.R. 9(30) in 1967, a form was prescribed and that form was used in his case.
These notifications also do not indicate that this was a deputation which could be terminated at any time.
The notifications involving deputation always clearly so state the fact.
Many notifications were brought to our notice during the argument which bear out this fact and none to the contrary was shown.
Das thus held a tenure post which was to, last till July 29, 1969.
A few months alone remained and he was not so desperately required in Assam that he could not continue here for the full duration.
The fact that it was found necessary to break into his tenure period close to its end must be read in conjunction with the three alternatives and they clearly demonstrate that the intention was to reduce him in rank by sheer pressure of denying him a secretaryship.
No Secretary, we were told, has so far been sent back in this manner and this emphasises the element of penalty.
His retention in Government of India on a lower post thus was a reduction in rank.
Finally we have to consider whether his reversion to Assam means a reduction in rank.
It has been noticed above that no State Service (the highest being Chief Secretary 's) carries the emoluments which Das was drawing as a Secretary for years.
His reversion would have meant a big drop in his emoluments.
Das was prepared to go to Assam provided he got a salary of Rs. 4,000 per month but it was stated before us that that was not possible.
Das was prepared to serve the Centre in any capacity which brought him the same salary.
This too was said to be not possible.
This case was adjourned several times to enable Government to consider the proposal but ultimately it was turned down.
All that was said was that he could only be kept in a lower post.
If this is not reduction in rank we do not see what else it is.
To give him a Hobson 's choice of choosing between reversion to a post carrying a lower salary or staying here on a lower salaried post, is to indirectly reduce him in rank.
Therefore, we are satisfied that Das was being reduced in rank with a stigma upon his work without following the procedure laid down in article 311(2).
We say nothing about a genuine case of accident of service in which a person drafted from a State has to go back for any reason not connected with his work or conduct.
Cases must obviously arise when a person taken from 230 the State may have to go back for reason unconnected with his work or conduct.
Those, cases are different and we are not expressing any opinion about them.
But this case is clearly one of reduction in rank with a distinct stigma upon the man.
This requires action in accordance with article 311(2) of the Constitution and since none was taken, the order of reversion cannot be sustained.
We quash it and order the retention of Das in a post comparable to the post of a Secretary in emoluments till such time as his present tenure lasts or there is an inquiry against him as contemplated by the Constitution.
Before we leave this case we are constrained to say that the attitude in respect of this case was not very happy.
Das offered to take leave preparatory to retirement on the 29th July, 1969 if he was retained in Delhi on this or other post.
This coincided with his present tenure.
But vast as the Delhi Secretariat is, no job was found for him.
This confirms us in our view ' of the matter that he was being sent away not because of exigency of service but definitely because he was not required for reasons connected with his work and conduct.
The appeal is thus allowed with costs here and in the High Court.
R.K.P.S. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The appellant joined the Indian Civil Service in 1933 and was thereafter allotted to the State of Assam.
On July 29, 1964 he was appointed as Secretary to the Government of India "until 'further orders".
On June, 20, 1966 he received a letter from the Cabinet Secretary advising him that in relation to the question of building up a higher level of administrative efficiency it had been decided by the Government that the appellant should revert to his parent State, or proceed on leave preparatory to retirement, or he should agree to accept some post lower than that of Secretary to the Central Government.
After the appellant had made representations to the Cabinet Secretary and the Prime Minister, he received another letter from the Cabinet Secretary in September, 1966.
affirming the Government 's decision that the appellant 's services would be placed at the disposal of his parent State of Assam or he could proceed on leave preparatory to retirement.
The appellant challenged these orders by a writ petition under article 226 of the Constitution on the ground that the orders were violative of article 311(2).
The High Court dismissed the petition and a Letters Patent appeal was also rejected.
It was contended on behalf of the appellant that the reversion of the appellant to the Assam Service amounted to a reduction in his rank on the ground that he held a higher post in the Government of India and there was no post equal to it under the Assam Government; the post of the Chief Secretary in the Assam Government was equal to the Post of a Joint Secretary in the Government of India and his reversion would therefore indirectly mean a reduction in his rank and also in his emoluments because the highest post in Assam did not carry a salary equal to that of a Secretary in the Government of India.
He also contended that the letters from the Cabinet Secretary spoke of his unsatisfactory work and cast a stigma on him; his reversion must, therefore, be treated as a penalty and as the procedure laid down under article 311(2) was not followed, the orders of the Government of India could not be sustained.
On the other hand it was contended on behalf of the Government that the appellant was on deputation and the deputation could be terminated at any time; that his orders of appointment clearly showed that the appointment was "until further orders" and he had no right to continue in the Government of India if his services were not required; his reversion to his parent State did not amount either to any reduction in rank or a penalty and the orders were therefore quite legal.
HELD : allowing the appeal, It was clear on the facts that the appellant was being reduced in rank with a stigma upon his work without following the procedure laid down in article 311(2) of the Constitution.
[229 G H] 221 As a Secretary to the Central Government the appellant held a tenure post, which was normally for a period of five years and he could expect to continue in that post until 29th July, 1969.
Nothing turned upon the words of the notification "until further orders" because all appointments to tenure posts had the same kind of order.
He was not therefore on a deputation which could be terminated at any time.
The fact that it was found necessary to break into the appellants 's tenure period close, to its end must be read in conjunction with the three alternatives offered to him and these clearly demonstrated that the intention was to reduce him in rank by sheer pressure of denying him a Secretaryship.
[229 B D] The letter addressed to the appellant in June, 1966, containing the ,Offer of a lower post in Delhi was a clear pointer to the fact of his (]emotion.
It clearly told him that his reversion was not due to any exigency of service but because he was found wanting.
This was not a case of reverting the appellant to Assam at the end of a deputation or tenure and the final alternative that he could retire clearly showed that the Government was bent upon removing him from his present post.
As there was no post in the Assam State Service carrying the same emoluments as those of a Secretary to the Central Government, on the facts of the present case the appellant 's reversion to Assam meant a reduction in rank within the meaning of article 311(2).
[228 A B; 229 F]


judgement:
Appeals Nos. 2093 and 2094 of 1968.
Appeals from the judgment and order dated August 5, 1968 of the Andhra Pradesh High Court in Writ Petitions Nos. 2339 and 2742 of 1968.
C. B. Agarwala, K. Srinivasa Murthy, B. P. Singh and Naunit Lal, for the appellants (in both the appeals).
A. section R. Chari, M. K. Ramamurthi, section Pappu, Madan Mohan, 207 A J.
Ramamurthi, Vineet Kumar, P. section Khera and Bindra Thakur, for respondent No. 2 (in both the appeals) The Judgment of the Court was delivered by Bhargava, J. An industrial dispute arose between 25 Co operative Central Banks in the State of Andhra Pradesh and their workmen represented by the Andhra Pradesh Bank Em ployees Federation, Hyderabad, which was referred by the Government of Andhra Pradesh to the Industrial Tribunal, Hyderabad, under section 10(1) (d) of the No. 14 of 1947.
The subject matter of the dispute was divided into three issues.
The first issue comprised a number of service conditions, viz., (1) Salary, Scales and Adjustments, (2) Dearness Allowance, (3) Special Allowances, (4) other Allowances, (5) Uniforms and Washing Allowances for subordinate staff, (6) Conveyance Charges, (7) Provident Fund and Gratuity, (8) Leave Rules, (9) Joining Time on Transfer, (1) Rules relating to departmental enquiry against employees for misconduct, (11) Probationary Period and Confirmation, (12) Working Hours and Overtime Allowance, (13) Age of Retirement,, (14) Security, (15) Common Good Fund, (16) Service Conditions and (17) Promotions.
The second and the third issues both related to the question whether the transfers of some employees of two of the Banks, The Vijayawada Co operative Central Bank, Ltd., Vijayawada, and The Vizianagaram Co operative Central Bank Ltd., Vizianagaram, were justified and, if not, to what reliefs were the employees entitled.
Before the Industrial Tribunal, one of the grounds raised on behalf of the Banks was that the reference of the disputes to the Tribunal was invalid, because such disputes were required to be referred for decision to the Registrar of the Co operative Societies under section 61 of the Andhra Pradesh Co operative Societies Act No. 7 of 1964 (hereinafter referred to as 'the Act '), and the effect of the provisions of the Act was to exclude the jurisdiction of the Industrial Tribunals to deal with the same disputes under the .
Various other pleas were also taken by the Banks in resisting the claims of the workmen, but, in these appeals, we are not concerned with them, because the Tribunal dealt with the point, mentioned by us above, as a preliminary issue and rejected the contention of the Banks.
Twenty four of the Banks thereupon challenged the preliminary decision of the Tribunal on this question, treating it as a preliminary award, by filing two Writ Petitions Nos. 2339 and 2742 of 1968 under article 226 of the Constitution in the High Court of Andhra Pradesh.
The High Court also rejected the plea of the Banks.
These two appeals have been brought up before us by certificate against the orders of the High Court dismissing the two writ petitions.
In Civil Appeal No. 2093/1968, the appellants are 10 Banks who 208 were petitioners before the High Court in Writ petition No. 2339 of 1968, while 2 of the petitioner Banks in that writ petition have been impleaded as respondents.
In Civil Appeal No. 2094 of 1968, the appellants are also 10 Banks who had joined in filing the other Writ Petition No. 2742/1968 in the High Court, while one of the petitioner Banks in that writ petition has been impleaded as respondent, and another has not joined the appeal as a party.
In these appeals, therefore, we are only concerned with one single question as to whether the jurisdiction of the Industrial Tribunal to adjudicate on the industrial dispute referred to it under section 10(1) (d) of the was barred by the provisions of section 61 of the Act.
The Tribunal, and the High Court, in rejecting the plea taken on behalf of the Banks, expressed the view that the disputes actually referred to the Tribunal were not capable of being decided by the Registrar of the Co operative Societies under section 61 of the Act and, consequently, the reference to the Industrial Tribunal under the was competent.
Learned counsel appearing on behalf of the Banks took us through the provisions of the Act to indicate that, besides being a local and special Act, it is a self contained Act enacted for the purpose of successful working of Co operative Societies, including Co operative Banks, and there are provisions in the Act which clearly exclude the applicability of other laws if they happen to be in conflict with the provisions of the Act.
It is no doubt true that the Act is an enactment passed by State Legislature which received the assent of the President, so that, if any provision of a Central Act, including the , is repugnant to any provision of the Act, the provision of the Act will prevail and not the provision of the Central .
The general proposition urged that the jurisdiction of the Industrial Tribunal under the will be barred if the disputes in question can be competently decided by the Registrar under section 61 of the Act is, therefore, correct and has to be accepted.
The question, however, that has to be examined is whether the industrial dispute referred to the Tribunal in the present cases was such as was required to be referred to the Registrar and to be decided by him) under section 61 of the Act.
In order to properly appreciate the submissions which have been made on behalf of the Banks by their counsel, it is necessary to set out the provisions of sections 16, 61, 62 and 133.
of the Act which are as follows : "16.
Amendment of bye laws of a society : (I) No amendment of any bye law of a society shall be valid unless such amendment has been registered under this Act.
Where such an amendment is not expressed to come into operation on a particular day, then, it 209 shall come into force on the day on which it is registered.
(2) Every proposal for such amendment shall be forwarded to the Registrar who shall, if he is satisfied that the proposed amendment fulfils the conditions specified in subsection (1) of section 7, register the amendment within a period of sixty days from the date of receipt of such proposals : Provided that the Government may, for sufficient cause which shall be recorded in writing, extend the said period for a further period of sixty days.
(3) The Registrar shall forward to the society a copy of the registered amendment together with a certificate signed and sealed by him, and such certificate shall be conclusive evidence that the amendment has been duly registered.
(4) Where the Registrar is not so satisfied, he shall communicate by registered post the order of refusal together with the reasons therefore, to the society within the period specified in sub section (2).
(5) If in the opinion of the Registrar, an amendment of the bye laws of a society is necessary or desirable in the interest of such society or of the co operative movement, he may, in the manner prescribed, call upon the society, to make any amendment within such time as he may specify.
If the society fails to make such an amendment within the time so specified the Registrar may, after giving the society an opportunity of making its representation, register such amendment and forward to the society by registered post a copy of the amendment together with a certificate signed by him; such a certificate shall be conclusive evidence that the amendment has been duly registered; and such an amendment shall have the same effect as an amendment of any bye law made by the society.
Disputes which may be referred to the Registrar (1) Notwithstanding anything in any law for the ' time being in force, if any dispute touching the constitution, management or the business of a society, other than a dispute regarding disciplinary action taken by the society or its committee against a paid employee of the society, arises (a) among members, past members and persons claiming through members, past members And deceased members; or 210 (b) between a member, past member or Person claiming through a member, past member or deceased member and the society, its committee or any officer, agent or employee of the society; or (c) between the society or its committee and any past committee, any officer, agent or employee, or any past officer, past agent or past employee or the nominee, heir or legal representative of any deceased officer, deceased agent, or deceased employee of the society; or (d) between the society and any other society; such dispute shall be referred to the Registrar for decision.
Explanation : For the purposes of this sub section a dispute shall include (i) a claim by a society for any debt or other amount due to it from a member, past member or the nominee, heir or legal representative of a deceased member, whether such debt or other amount be admitted or not; (ii) a claim by a surety against the principal debtor where the society has recovered from the surety any amount in respect of any debt or other amount due to it from the principal debtor as a result of the default of the principal debtor whether such debt or other amount due be admitted or not; (iii) a claim by a society against a member, past member or the nominee, heir or legal representative of a deceased member for the delivery of possession to the society of land or other immovable property resumed by it for breach of the conditions of assignment or allotment of such land or other immovable property.
(2) If any question arises whether a dispute referred to the Registrar under this section is a dispute touching the constitution, management or the business of a society, such question shall be decided by the Registrar.
(3) (a) Every dispute relating to, or in connection with, any election to a committee of a society referred to in clause (a) of sub section (3) of section 31, shall be referred for decision to a 211 Subordinate Judge or where there is no Sub ordinate Judge, to the District Judge having jurisdiction over the place where the main office of the society is situated, whose decision thereon shall be final.
(b) Every dispute relating to or in connection with any election to a committee of such class of societies as may, by notification in the Andhra Pradesh Gazette, be specified by the Government in this behalf and referred to in clause (b) of sub section (3) of section 31, shall be referred for decision to a District Munsiff having jurisdiction over the place where the main office of the society is situated, and his decision thereon shall be final.
(4) Every dispute relating to, or in connection with, any election to a committee shall be referred under sub section (1) of sub section (3) only after the date of declaration of the result of such election.
Action to be taken by the Registrar on such reference (1) The Registrar may, on receipt of the reference of a dispute under section 61 (a) elect to decide the dispute himself; or (b) transfer it for disposal to any person who has been invested by the Government with powers in that behalf; or (c) refer it for disposal to an arbitrator.
(2) Where the reference relates to any dispute involving immovable property, the Registrar or such person or arbitrator, may order that any person be joined as a party who has acquired any interest in such property subsequent to the acquisition of interest therein by a party to the reference and any decision that may be passed on the reference by the Registrar, or the person or the arbitrator aforesaid, shall be binding on the party so joined as if he were an original party to the reference.
(3) The Registrar may, by order for reasons to be recorded therein, withdraw any reference transferred under clause (b) of sub section (I ) or referred under clause (c) of that sub section and may elect to decide the dispute himself or transfer it to any other person under clause (b) of sub section (I ) or refer it to any other arbitrator under clause (c) of that subsection.
212 (4) The Registrar, such person or arbitrator shall decide the dispute in accordance with the provisions of this Act and the rules and bye laws and such decision shall, subject to the provisions of section 76, be final.
Pending final decision on the dispute, the Registrar, such person or arbitrator, as the case may be, may make such interlocutory orders as he may deem necessary in the,, interests of justice.
Act to override other laws : The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law.
" Reliance was placed on the non obstante clause "Notwith standing anything in any law for the time being in force" occurring in section 61 of the Act which has the effect that a dispute covered by this section must necessarily be referred to the Registrar for decision, so that it cannot be referred to any other authority under any other law.
Further strength is sought in support of this proposition from the provisions of section 133 of the Act which clearly lays down that the provisions of the Act have overriding effect if there be any provision in any other law inconsistent with the provisions of the Act.
Then, it was argued that the language of section 61 of the Act is wide enough to cover the disputes referred to the Tribunal in these cases, because the disputes are between co operative societies and their employees and they touch the business of the co operative societies.
In support of this submission, learned counsel referred us to a number of decisions of various High Courts in which the scope of the provisions contained in section 61 of the Act or of similar provisions in other local enactments was considered.
Most of these decisions were concerned with laying down the meaning of the expression "touching the business of the society" so as to include within its scope disputes of different nature between the co operative socie ties and their employees.
The cases which have been brought to our notice are : (1) a decision of a learned single Judge of the Bombay High Court in G.I.P. Railway Employees Co operative Bank Ltd. vs Bhikhaji Merwanji Karanjia Employee(1), in which a similar provision contained in section 54 of the Bombay Co operative Societies Act No. 7 of 1925 was interpreted; (2) a decision in Sagar Motor Transport Karamachari Union, Sagar vs Amar Kamgar Passenger Transport Company Co opera tive Society, Sagar and Another(2), where the Madhya Pradesh 'High Court interpreted section 55(2) of the Madhya Pradesh (1) A.I.R. 1943 Bom.
(2) (1969) 18 Indian Factories and Labour Reports, 27.
213 Co operative Societies Act, 1960 which required a dispute regarding terms of employment, working conditions and disciplinary action taken by a society, arising between a society and its, employees, to be decided by the Registrar or any Officer appointed by him; (3) a decision of a Full Bench of the Madras High Court in M. section Madhva Rao and Others vs D. V. K. Surya Rao, Member of the Pithapuram Co operative Bank, Pithapuram and Others(1) in which section 51 of the Madras Co operative Societies Act No. 6 of 1932, which was very similar to section 61 of the Act, was interpreted; and (4) a decision of a Full Bench of the Bombay High Court in Farkhundali Nannhay vs Potdar (V.B.) (2), in which also section 54 of the Bombay Co operative Societies Act No. 7 of 1925 came up for interpretation.
Learned counsel for the appellants also brought to our notice a decision of a single Judge of the Calcutta High Court in Cooperative Milk Societies Union, Ltd. vs State of West Bengal and others(3), where a dispute as to wages, wage scales and dearness allowance was held not to be a dispute within the meaning of that word as defined in the Bengal Co operative Societies Act, 1940, and sought to distinguish it on the ground that the decision in that case turned on the meaning specially given in that Act to the word "dispute".
It appears to us that it is not necessary to examine in detail the reasons given by the High Courts in the above cited cases for the interpretation placed by them on provisions similar to section 61 of the Act in view of a very recent decision of this Court in The Deccan Merchants Co operative Bank Ltd. vs Messrs Dalichand Jugraj & Others(4).
In that case, this Court had to interpret section 91 of the Maharashtra Co operative Societies Act, 1960 (Maharashtra Act 32 of 1961), the relevant provision of which is reproduced below "91 (1) Notwithstanding anything contained in any other law for the time being in force, any dispute .touching the constitution, elections of the office bearers, conduct of general meetings, management or business of a society shall be referred by any of the parties to the dispute, or by a federal society to which the society is affiliated, or by a creditor of the society, to the Registrar, if both the parties thereto are, one or other of the following : (1) A.I.R. 1954 Mad. 103.
(3) (2) [1962] I L.L.J. 51.
(4) [1969] 1 S.C.R. 887.
, 214 (a) a society, its committee, any past committee, any past or present officer, any past or present agent, any past Or present servant or nominee, heir or legal representative of any deceased officer, deceased agent or deceased servant of the society, or the Liquidator of the society; One of the questions which the Court formulated as requiring an answer was : what is the meaning of the expression "touching the business of the society" '? In order to decide this question, the Court analysed the provisions of section 9 1 ( 1 ) and held : "Five kinds of disputes are mentioned in sub section (1); first, disputes touching the constitution of a society; secondly, disputes touching election of the office bearers of a society, thirdly, disputes touching, the con duct of general meetings of a society; fourthly, disputes touching the management of a society; and fifthly, disputes touching the business of a society.
It is clear that the word 'business ' in this context does not mean affairs of a society because election of office bearers, conduct of general meetings and management of a society would be treated as affairs of a society.
In this sub section the word 'business ' has been used in a narrower sense and it means the actual trading or commercial or other similar business activity of the society which the society is authorised to enter into under the Act and the Rules and its bye laws.
" In that case, this Court was concerned with the question whether a dispute touching the assets of a society was a dispute touching the business of the society, and it was in that context that the interpretation mentioned above was given by this Court.
In considering the full scope of section 91 (I) of the Maharashtra Act 32 of 1961, the Court further proceeded to hold : "While we agree that the nature of business which a society does can be ascertained from the objects of the society, it is difficult to subscribe to the proposition that whatever the society does or is necessarily required to do for the purpose of carrying out its objects can be said to be part of its business.
We, however, agree that the word 'touching ' is very wide and would include any matter which relates to or concerns the business of a society, but we are doubtful whether the word 'affects ' should also be used in defining the scope of the word 'touching" '.
215 This comment was made when taking.
notice of the decision of the Full Bench of the Bombay High Court in Farkhundli vs Potdar(1).
The Court also held : "One other limitation on the word 'dispute ' may also be placed and that is that the word 'dispute ' covers only those disputes which are capable of being resolved by the Registrar or his nominee. " Considering the similarity between section 61 of the Act and section 91 (1 of the Maharashtra Act 32 of 1961, we are of the opinion that the interpretation already placed by this Court on the provisions of section 91 (I) of the Maharashtra Act 32 of 1961 is fully applicable to the provisions of section 61 of the Act with which we are concerned.
Consequently, in deciding these appeals, we must proceed on the basis that section 61 of the Act requires reference of a dispute to the Registrar only if the dispute is capable of being resolved by the, Registrar or his nominee, and, further, the dispute between the co operative society and the employee touches the business of the society in the sense explained by this Court in that case.
Applying these tests, we have no doubt at all that the dispute covered by the first issue referred to the Industrial Tribunal in the present cases could not possibly be referred for decision to the Registrar under section 61 of the Act.
The dispute related to alteration of a number of conditions of service of the workmen which relief could only be granted by an Industrial Tribunal dealing with an industrial dispute.
The Registrar, it is clear from the provisions of the Act, could not possibly have granted the reliefs claimed under this issue because of the limitations placed on his powers in the Act itself, It is true that section 61 by itself does not contain any clear indication that the Registrar cannot entertain a dispute relating to alteration of conditions of service of the employees if a registered society; but the meaning given to the expression "touching the business of the society", in our opinion, makes it very doubtful whether a dispute in respect of alteration of conditions of service can be held to be covered by this expression.
Since the word "business" is equated with the actual trading or commercial or other similar business activity of the society, and since it has been held that it would be difficult to subscribe to the proportion that whatever the society does or is necessarily required to do for the purpose of carrying out its objects, such as laying down the conditions of service of its employees, can be said to be a part of its business, it would appear that a dispute relating to conditions of Service of the workmen employed by the society cannot be held to be a dispute touching the business of the society.
Further, the position is clarified by the provisions of sub section
(4) of section 62 of the Act which limit the power to be (1) [1962] I.L.L.J. 51.
216 exercised by the Registrar, when dealing with a dispute referred to him under section 61, by a mandate that he shall decide the dispute in accordance with the provisions of the Act and the Rules and bye laws.
On the face of it, the, provisions of the Act, the rules and the bye laws could not possibly permit the Registrar to change conditions of service of the workmen employed by the society.
For the purpose of bringing facts to our notice in the present appeals, the Rules framed by the Andhra Pradesh Government under the Act, and the bye laws of one of the appellant Banks have been placed on the Paper books of the appeals be fore us.
It appears from them that the conditions of service of the employees of the Bank have all been laid down by framing special bye laws.
Most of the conditions of service, which the workmen want to be altered to their benefit, have thus been laid down by the bye laws, so that any alteration in those conditions, of service will necessarily require a change in the bye laws.
Such a change could not possibly be directed by the Registrar when, under section 62(4) of the Act, he is specifically required to decide the dispute referred to him in.
accordance with the provisions of the bye laws.
It may also be noticed that a dispute referred to the Registrar under section 61 of the Act can even be transferred for disposal to a person who may have been invested by the Government with powers in that behalf, or may be referred for disposal to an arbitrator by the Registrar.
Such person or arbitrator, when deciding the dispute, will also be governed by the mandate in section 62 (4) of the Act, so that he will also be bound to reject the claim of the workmen which is nothing else than a request for alteration of conditions of service contained in the bye laws.
It is thus clear that, in respect of the dispute relating to alteration of various conditions of service, the Registrar or other person dealing with it under section 62 of the Act is not competent to grant the relief claimed by the workmen at all.
On the principle laid down by this Court in the case of the Deccan Merchants Cooperative Bank Ltd.(1), therefore, it must be held that this dispute is not a dispute covered by the provisions of section 61 of the Act.
Such a dispute is not contemplated to be dealt with under section 62 of the Act and must, therefore, be held to be outside the scope of section 61.
In this connection, we may take notice of the view expressed by a learned single Judge of the Madras High, Court in South Arcot Co operative Motor Transport Society, Ltd. (for ex servicemen) vs Syed Batcha and others(2) where dealing with an industrial claim, the learned Judge held : "Therefore, in regard to an industrial claim, like the retrenchment compensation, the remedy for the (1) [1969] 1 S.C.R. 887.
(2) [1960] II L.L.S. 693. 217 worker would be only to enforce it by the machinery created by the , namely, by sections 10 and 33C(2).
The Madras Co operative Societies Act being itself a special statute, the authority, acting under it, would have no jurisdiction beyond what the enactment itself conferred on him.
lie could not, therefore, have jurisdiction to decide a dispute under the .
" That decision also related to section 51 of the Madras Co operative Societies Act, 1932, which was similar in terms to section 61 of the Act.
Learned counsel appearing on behalf of the appellant Banks, however, urged a new point to challenge the jurisdiction of 'the Industrial Tribunal to deal with the dispute relating to conditions of service to the effect that the conditions of service having been made the subject matter of bye laws, an Industrial Tribunal will not be competent to alter them, because even an Industrial Tribunal has no jurisdiction to make orders contrary to law.
For this purpose, he referred us to a number of decisions of this Court in Dalmia Cement (Bharat), Ltd., New Delhi vs Their Workmen and Another(1); The Management of Marina Hotel vs The Workmen (2) ; Cinema Theatres vs Their Workmen(3); and The Hindustan Times Ltd., New Delhi vs Their Workmen & Vice Versa(4).
In all these cases, it was held that an Industrial Tribunal acted illegally in prescribing leave in excess of the number of days laid down by the Delhi Shops and Establishments Act, 1954.
In section 22 of that Act there was a specific prohibition that leave for sickness or casual leave with full wages shall not exceed 12 days; and it was held that a direction made by the Tribunal granting to the workmen more than 12 days ' sickness or casual leave was illegal.
The principle of the decisions in those cases does not, however, appear to us to be applicable to the cases before us, because, in the present cases, there is no prohibition contained in the Act that the conditions of service prescribed are not to be altered.
The argument on behalf of the Bank, however, was that the bye laws, which contained the conditions of service, are themselves law, so that any direction made by an Industrial Tribunal altering a condition of service con tained in a bye law would be an order contrary to law and, hence, illegal.
We are unable to accept the submission that the bye laws of a co operative society framed in pursuance of the provisions of (1) [1961] II L.L.J. 130 (3) [1264] II L.L.J. 128.
Ll 2Sup.
CI/69 1 5 (2) ; (4) [1964] T. S.C.R. 234.
218 the Act can be held to be law or to have the force of law.
It has no doubt been held that, if a statute gives power to a Government or other authority to make rules, the rules so framed have the force of statute and are to be deemed to be incorporated as a part of the statute.
That principle, however, does not apply to bye laws of the nature that a co operative society is empowered by the Act to make.
The bye laws that are contemplated by the Act can be merely those which govern the internal management, business or administration of a society.
They may be binding between the persons affected by them, but they do not have the force of a statute.
In respect of bye laws laying down conditions of service of the employees of a society, the bye laws would be binding between the society and the employees just in, the same manner as conditions of service laid down by contract between the parties.
In fact, after such bye laws laying down the conditions of service are made and any person enters the employment of a society, those conditions of service will have to be treated as conditions accepted by the employee when entering the service and will thus bind him like conditions of service specifically forming part of the contract of service.
The bye laws that can be framed by a society under the Act are similar in nature to the Articles of Association of a Company incorporated under the Companies Act and such Articles of Association have never been held to have the force of law.
In a number of cases, conditions of service for industries are laid down by Standing Orders certified under the , and it has been held that, though such Standing Orders are binding between the employers and the employees of the industry governed by those Standing Orders, they do not have such force of law as to be binding on industrial Tribunals adjudicating an industrial dispute.
The jurisdiction which is granted to Industrial Tribunals by the is not the jurisdiction of merely administering the existing laws and enforcing existing contracts.
Industrial Tribunals have the right even to vary contracts of service between the employer and the employees which jurisdiction can never be exercised by a civil court or a Registrar acting under the Co operative Societies Act, so that the circumstance that, in granting relief on issue No. 1, the Tribunal will have to vary the special bye laws framed by the Cooperative Bank does not lead to the inference that the Tribunal would be incompetent to grant the reliefs sought in this reference.
In fact, the reliefs could only be granted by the Industrial Tribunal and could not fall within the scope of the powers of the Registrar dealing with a dispute under section 61 of the Act.
We may also, in this connection, take notice of the submission made by learned counsel that the Registrar could have granted relief, under section 16 (5) of the Act if he thought that it was advis 219 able to grant that relief to the workmen.
in our opinion, this submission must be rejected for two reasons.
The first reason is that action taken by the Registrar under section 16(5) of the Act will not be a decision on a dispute referred to him under section 61 of the Act.
When dealing with the dispute under section 61 of the Act, the Registrar is bound to decide the dispute in accordance with the existing bye laws, so that, if the dispute relates to alteration of conditions of service laid down in the bye laws, he will be incompetent to grant the relief claimed.
It is also to be noticed that a dispute referred to a Registrar under section 61 of the Act may be transferred for disposal to a person who has been invested by the Government with powers in that behalf or may be referred for disposal to an arbitrator.
On the face of it, such person or arbitrator cannot possibly exercise the powers of the Registrar under, section 16(5) of the Act.
The second reason is that, under section 16(5) of the Act, the power given to the Registrar to propose amendments in the bye laws and to enforce them if the proposal is not accepted by a society is to be exercised only when the Registrar is of the opinion that it is necessary or desirable to do so in the interests of such society or of the co operative movement.
Amendments in bye laws under section 16(5) of the Act are not contemplated in the interests of the workmen or for the purpose of resolving industrial disputes.
The provisions of section 16(5) of the Act thus appear to us to be irrelevant when considering the scope of the jurisdiction of the Registrar under section 61 of the Act.
Consequently, the decision of the High Court holding that the Tribunal had jurisdiction to deal with the industrial dispute referred to it must be upheld.
We may also take notice of an argument advanced at the last stage by learned counsel appearing on behalf of the Banks that, in any case, matters covered by issues Nos. 2 and 3 referred to the Tribunal could have been competently decided by the Registrar, and the reference in respect of those two issues at least should be held to be incompetent.
We do not think that at this stage there is any need for us to decide this question, because such a point was not raised at all in the petitions filed under article 226 of the Constitution before the High Court.
In those petitions, the competence of the reference to the Industrial Tribunal as a whole was challenged on the ground that it was barred because of the jurisdiction of the Registrar to deal with the dispute under section 61 of the Act.
Consequently, we need not deal with the question whether a particular issue forming part of the reference has been,.competently referred or not.
The appeals fail and are dismissed with costs.
One hearing fee.
Appeals dismissed.

summary/full:
Disputes between some Cooperative Central Banks of Andhra Pradesh and their employees, relating to : (i) service conditions such as salary scales, dearness and other allowances, conveyance charges, working hours and promotion, age of retirement, provident fund and gratuity, leave rules, departmental enquiries, probation and confirmation; and (ii) the question whether transfers of some employees were justified, were referred to the Industrial Tribunal under section 10(1)(d) of the .
On the question whether the Industrial Tribunal had no jurisdiction to decide the disputes, because : (1) the disputes could be referred to the Registrar of Cooperative Societies under section 61 of the Andhra Pradesh Cooperative Societies Act, 1964; (2) the Registrar, in dealing with the disputes referred to, him under section 61 of the Andhra Act, could grant relief by amending the bye laws under.s. 16(5); and (3) If the Industrial Tribunal gave relief to the employees it would be altering the bye laws thus making orders contrary to law.
HELD: (1) (a) The Andhra Act is an enactment passed by the State Legislature and received the assent of the President.
Therefore, if any provision of the (a Central Act) is repugnant to any provision of the Andhra Act, the latter would prevail.
But section 61 of the Andhra Act requires reference of a dispute to the Registrar only if the dispute is capable of being resolved by him or his nominee, and if the dispute between the cooperative society and its employee touches the business of the society.
The word 'business ' means actual trading or commercial or other similar business activity of the society.
Therefore, whatever a society does or is required to do for the purpose of carrying out its objects, such as laying down the conditions of service of its employees, cannot be said to be a part of its 'business ', and hence, a dispute relating to conditions of service of the workmen employed by the society cannot be held to be a dispute touching the business of the society.
[2O9 E F; 215 B D, G H] (b) The Registrar could not have granted the reliefs claimed because of the limitations placed on his powers by the Andhra Act.
Most of the Conditions of service which the workmen want to be altered to their benefit have been laid down by the bye laws, so that, any alteration in those con ditions of service will require a change in the bye laws.
But such a change could not possibly be directed by the Registrar, because, under section 62(4) of the Andhra Act, the Registrar or other person or arbitrator to whom the dispute may be referred under section 61 is specifically required to decide the dispute refer red to him in accordance with the provisions of the bye laws.
[2l6 B D, F] 206 The Deccan Merchants Cooperative Bank Ltd. vs m/s.
Dulichand Jugraj fain, [1969] 1 S.C.R. 887, followed.
South Arcot Cooperative Motor Transport Society Ltd. vs Syed Batcha, , approved.
(2)The provisions of section 16(5) of the Andhra Act are irrelevant in,, considering the scope of the jurisdiction of the Registrar under section 61 of the Act, because : (a) any action taken by the Registrar under section 16(5) will not be a decision in a dispute referred to him under section 61; (b) though the Registrar has the power to amend bye laws under section 16(5) any other person or arbitrator, to whom the disputes may be referred, has no such power; and (c) even the Registrar 's powers under section 16(5) to amend bye laws is to be exercised only if he is of the opinion that it would be in the interests of the society and are not contemplated to be exercised in the interests of the workmen or for the purpose of resolving industrial disputes.
[219 B E] (3) The principle that rules framed under a statute have the force of statute does not apply to bye laws of a cooperative society.
They merely govern the internal management, business or administration of a society and may be binding between the persons affected by them but are neither law nor do they have the force of law.
They are just like conditions of service laid down by contract between the parties, or like bye laws under the Articles of Association of a company under the Companies Act, or Standing Orders certified under the Industrial Employment (Standing Orders)Act, 1946.
Therefore, the circumstance that in granting relief, the Tribunal may have to vary the special bye laws framed by the Cooperative Banks does not lead to the inference that the Tribunal would be making orders contrary to law and therefore is incompetent to grant the reliefs claimed.
The jurisdiction granted to the Tribunal by the is not the jurisdiction of merely administering existing laws and enforcing existing contracts.
The Tribunal has the jurisdiction even to vary contracts of service between employer and employees.
Further, in the Andhra Act there is no prohibition that the conditions of service prescribed are not to be altered.
Therefore, the reliefs could only be granted by the Industrial Tribunal and could not fall within the scope of the Registrar 's powers under the Cooperative Societies Act.
[217 H; 218 D H] Dalmia Cement (Bharat) Ltd. vs Their Workmen, [1961] II L.L.J. 130 (S.C.)The Management of Marina Hotel vs The Workmen, ; , Cinema Theatres vs The Workmen, and The Hindustan Times Ltd. vs Their Workmen, [1964] 1 S.C.R. 234, distinguished.
Since the competence of the reference to the Tribunal as a whole was challenged on the ground that it was barred by section 61 of the Andhra Act, the question whether a particular issue forming part of the reference was competently referred or not did not arise.
[219 F, G H]


judgement:
Appeal No. 757 of 1963.
Appeal by special leave from the judgment and decree dated November 29, 1960 of the Andhra Pradesh High Court in Appeal No. 261 of 1956.
M. C Chagla, R. Thiagarajan and T. Satyanarayana, for the appellant.
Suryanarayanamurthy and K. Jayaram for respondents Nos. 1, 4 to 6, 9 to 11, 13, 17, 25, 26, 29, 39, 42, 45, 47, 55 to 57, 59, 63 and 64.
The Judgment of the, Court was delivered by Bachawat, J.
This dispute relates to the succession to the immoveable properties of late Bhaskara Rao, a Brahmin karnam, 302 who died on November 29, 1903 without issue, but leaving a widow.
The suit was instituted on April 15, 1953 by the appellant claiming to be the nearest heir of Bhaskara Rao for recovery of possession of the properties.
The case of the contesting defendants is that Bhaskara Rao executed a will on November 29, 1903 authorising his widow Seshamma to adopt a son, that pursuant to such authority she 'adopted Rajeswarara, in or about May 1904 that Rajeswararao died in 1950 and that the first defendant is his adopted son.
The courts below concurrently found in favour of the defendants on all the points.
They held that (1) Bhaskara Rao duly executed the will dated November 29, 1903; (2) his widow Seshamma in fact adopted Rajeswararao in or about May 1904 and the requisite ceremonies of adoption were performed.
These findings of fact are no longer challenged.
The trial court held that 'at the time of adoption Seshamma was about 14, years of age.
The High Court held that having regard to the lapse of time there was a strong presumption that Seshamma had attained the usual age of discretion at the time of the adoption, that the presumption had not been rebutted and that the adoption was valid.
Mr. M. C. Chagla argued that in May 1904 Seshamma had not attained the age of discretion and was not competent to make the adoption.
He relied on the following passage in Mulla 's Principles of Hindu Law, 13th ed.
article 465, page 491 : "A minor widow may adopt in the same circum stances as an adult widow, provided she has attained the age of discretion and is able to form an independent judgment in selecting the boy to be adopted.
According to Bengal writers the age of discretion is reached at the beginning of the sixteenth year; according to Benaras writers, at the end of the sixteenth year.
The former view was taken in a recent Madras case.
" Now there is no clear evidence on the question of Seshamma 's age in May 1904.
The plaint said that she was then 10 years of age.
One of the written statements said that she was about 15 years old.
Exhibit A 2 an extract from the register of deaths suggests that she was then aged about 14 years.
In exhibit A 7 dated March 25, dated May 2, dated April 25, , dated November 1, 191 dated November 15, 1911, Exs.
A 11 and A 12 dated November 17, 1911,she was described as a minor.
But exhibit B 138 dated August 9, 1910 described her 'as a major.
The evidence of DW 2 suggests that she was about 15 years old at the time of adoption.
The evidence of DW 3 fixes her age at about 17 years in or about 1903.
Evidence was adduced to show that she married in 1898 303 when she was 11 or 12 years old.
The appellant made no attempt to produce the certified copy of the register of births which would have shown her exact age.
The adoption was made in May 1904.
It was challenged in 1953 after a lapse of about 50 years.
The, long delay in filing the suit is not satisfactorily explained.
A declaratory suit challenging the adoption could have been filed soon after the adoption.
Rajeswara Rao died in 1950, Seshamma died on October 2, 1952.
During his life time Rajeswararao was re cognised by every member of the family as the adopted son of Bhaskara Rao.
He was registered as kamam and acted as such, till his death.
Under exhibit B 12 dated November 19, 1937 the plaintiff 's mother Kamappa purchased a property from Rajeswara Rao wherein he was described as the adopted son of Bhaskara Rao.
Having regard to the long lapse of time and the recognition of Rajeswararao as the adopted son of Bhaskara Rao, the strongest presumption arises in favour of the validity of the adoption.
The law on this point is correctly stated in Mulla 's Hindu Law, 13th ed., article 512, page 519: "But when there is a lapse of 55 years between the adoption and its being questioned, every allowance for the absence of evidence to prove such fact must be favourably entertained.
It stands to reason that after a very long term of years, and a variety of transactions of open life and conduct upon the footing that the adoption was a valid act, the burden must rest heavily upon him who challenges its validity," See also Venkataseetarama Chandra Row vs Kanchu Marthi Raju(1).
The presumption in this case is very heavy considering that all the parties to the adoption and all those who could have given evidence in favour of its validity have passed away.
The appellant has not rebutted this presumption and has not shown that Sashamma did not attain the age of discretion in May 1904 and was not competent to make the adoption.
The courts below rightly found in favour of the factum and validity of the adoption.
There is no merit in this appeal.
The appeal is dismissed with costs.
V.P.S. Appeal dismissed,.
(1) A.I.R 1925 P.C. 201, 202.

summary/full:
One B, a Brahmin Karnam, executed a will in 1903 authorising his 'widow to adopt.
After his death, the widow adopted R in 1904.
The first respondent was R 's adopted son.
R died in 1950, and his adoptive mother died in 1952.
During his lifetime, R was recognised by every member of the family as the adopted son of B, and he was registered as the Karnam and he acted as the Karnam till his death.
In 1953, the appellant, claiming to be the nearest heir of B filed a suit for recovery of possession of B 's property contending that R 's adoption was invalid, because, the adoptive mother had not attained the age of discretion at the .time of the adoption and was therefore not competent to make the adop tion.
The suit was dismissed.
In appeal to this Court, HELD : Where there is a lapse of several years between the adoption and its being questioned, the burden rests heavily upon him who challenges it, and every allowance for the absence of evidence to prove it must be favourably entertained.
[303 D E] In the present case, having regard to the long lapse of time, the recognition of R as, the adopted son of B, and the fact that those who could have given evidence in favour of the adoption had passed away, a strong presumption in favour of the validity of adoption should be drawn.
The appellant made no attempt to produce the certified copy of the register of births which would have shown, the exact age of the mother and thus failed to rebut the presumption.
[303 C D; F] Venkataseetarama Chandra Row vs Kanchu Marthi Raju A.I.R. applied.