judgement:
Appeals Nos. 644 650/74.
(Appeals by Special Leave from the Judgment and Order dated 21 6 1975 of the Karnataka High Court in Misc.
First Appeal Nos. 77, 444 450/70 respectively).
K. Sen, V.M. Tarkunde, H.B. Datar and R.B. Datar for the appellant.
section Rangaraj, M. Qamaruddin, P.N. Purl, S.K. Mehta for Mr. K.R. Naggrain, for respondent in CA.
No. 644/74.
A.R. Somnath Iyer, section Laxminarasu, for respondents in CA.
Nos. 645 650/74.
The Judgment of the Court was delivered by BEG, J.
Civil Appeals Nos.
650 of 1974 are by special leave against the judgment of a Division Bench of the Karnataka High Court.
The common and principal question of law which arises is: Does the City of Bangalore Improve ment Act, 1945 (hereinafter referred to as 'the Act ' or 'the Bangalore Act '), applying the provisions of the Land Acqui sition Act, 1894 (Central Act 1 of 1894).
(hereinafter referred to as 'the Acquisition Act '), to acquisitions of land in Bangalore require the determination of market value, for purposes of awarding compensation, on a date correspond ing to the date of notifi 181 cation under Section 4 of the Acquisition Act or to the date corresponding to that of the notification under Section 6 of the Acquisition Act The facts of the cases are not really material for the determination of the question of law stated above.
A few facts relating to the lands acquired may, however, be men tioned.
They have a bearing on a connected question dealt with at the end of this judgment.
The seven appeals by special leave arise out of land acquisition proceedings in which the 1st of the preliminary notifications, under Section 16 of the Bangalore Act, took place in the Mysore Gazette from 1960 onwards; and, the subsequent notifications, under Section 18 of the Bangalore Act, equated by Section 27(2) of the Bangalore Act with notifications under Section 6 of the Acquisition Act, were made in 1967.
All the lands involved in these appeals are situated in Birmamangala Village, Bangalore North Taluk, and are .shown to have been acquired for the purposes.
of a scheme known as 'Bhinnamangala Lay Out II Stage or Indira Nagar Extension '.
The Bangalore Act, as its preamble states, is really concerned with the "improvement and future expansion of the City of Bangalore and for the appointment of a Board of Trustees with .special powers to carry out the aforesaid purposes;".
As an incident of this improvement and expansion it provides for acquisition of land also.
It does not, however, contain a separate code of its own for such acqui sitions.
But, Section 27 of the Bangalore Act lays down: "27.
Provisions applicable by the acquisition of land otherwise than by agreement.
The acquisi tion otherwise than by agreement of land within or without the City under this Act shall be regulated by the provisions, ,so.
far as they are applicable, of the Mysore Land Acquisition Act, 1894, and by the following further provisions, namely : (1) Upon the passing of a resolution by the Board that an improvement scheme under Section 14 is necessary in respect of any locality, it shall be lawful for any person either generally or spe cially authorised by the Board in this behalf and for his servants and workmen, to do all such acts on or in respect of land in that locality as it would be lawful for an officer duly authorised by the Government to act under Section 4(2) of the Mysore Land Acquisition Act, 1894 and for his servants and workmen to do thereunder; and the provision contained in Section 5 of the said Act shall likewise be applicable in respect of damage caused by any o.f the acts first mentioned.
(2) The publication of a declaration under section 18 shall be deemed to be the publication of a declaration under section 6 of the Mysore ', Land Acquisition Act, 1894.
182 (3) For the purposes of section 50(2) of the Mysore Land Acquisition Act, 1894 the Board shall be deemed to be the local authority concerned.
(4) After the land vests in the Government under section 16 of the Mysore Land Acquisition Act, 1894 the Deputy Commissioner shall, upon payment of the cost of the acquisition, and upon the Board agreeing to pay any further costs which may be incurred on account of the acquisi tion, transfer the land to the Board, and the land shall thereupon vested in the Board".
The Mysore Land Acquisition Act of 1894 exactly reproduces our Central Land Acquisition Act 1 of 1894.
Therefore, the term 'Acquisition Act ' in this judgment covers references to both the Mysore Land Acquisition Act as well as the Central Land Acquisition Act 1 of 1894.
It was stated by Counsel that the Mysore Land Acquisition Act was also correspondingly amended whenever provisions of the Central Land Acquisition Act 1 of 1894 were altered .so that the two could be treated as iden tical for our purposes.
The judgment and orders of the Division Bench, under appeal before us, purports to follow a Full Bench decision of the Mysore High Court in Venka tamrna vs Special Land Acquisition Officer(1), where it was held that the relevant date for deter mining the market value of the property to be acquired is the date of notification under section 18 of the City of Mysore Improvement Act of 1903.
It appears that the provisions of the last men tioned Mysore Act of 1903 largely correspond with the provisions of the Bangalore Act before us.
It has, however, to be remembered that the Act which the Full Bench of the Mysore High Court was interpreting was.
enacted in 1903.
It had, there fore, to be construed with reference to the provi sions of the Acquisition Act as it stood in 1903.
The Mysore Full Bench had observed that the Mysore Land Acquisition Act had been amended by the Mysore Act 1 of 1927 "so as to make compensation payable as on the date of publication of the notification under section 4(1) of that Act" instead of with reference to the date of notification under section 6 according to the unamended law.
It said: "It is significant to note that the Mysore Legis lature did not make any corresponding amendment in the Act" (that is to say, the City of Mysore Act of 1903).
The Bangalore Act, even though it may Correspond substantially with the provisions of the Mysore Improvement Act 3 of 1903, was enacted in 1945.
Hence, references in the Bangalore Act to the Acquisition Act, which had been amended considerably between 1903 and 1945, could not have the same effect as similar references to the Acqui sition Act in the Mysore Act of 1903.
We think that the Division Bench of the Karnataka High Court overlooked this vital distinction.
(1) A.I.R. 183 The Full Bench of the Mysore High Court ex pressed the view that the contention that a notifi cation under Section 16 of the Mysore Act of 1903 could be equated with a notification under section 4 of the Acquisition Act was negatived by the provisions of Section 23 sub.
section (1) of the Mysore Act of 1903.
It said (at p. 198): "Section 23 (1) of the Act states that upon the passing of a resolution by the Board that an improvement scheme under Section 14 is necessary, it would be lawful for any person authorised by the Board to enter upon the land carry out the several acts on the land in question as provid ed under section 4(2) of the Acquisition Act and the pro visions of section 5 of the Acquisition Act would likewise be applicable in respect of damage caused by any of the acts of servants or workmen of the Board".
It, therefore, thought that what was sought to be achieved by notification under section 4( 1 ) of the Acquisition Act was done by a resolution under section 14 of the Mysore Act.
Taking the view that such a resolution could only be anterior to the publication of the notification under sec tion 16, it equated the notification under section 16 of the Mysore Act with a notification under section 6 of the Acquisition Act.
Thus, the Mysore.
Full Bench found in Section 23 (1) of the Mysore Act of 1903, a justification for equating provisions of section 14 of that Act with, those of section 4(1) of the Acquisition Act.
But, we do not find either in section 23 of the Bangalore Act, which deals with an entirely different subject matter, or, any where, apart from section 27, additional provision (1) of the Bangalore Act, a similar provision which could ;indicate that proceedings under a section other than those under section 16 of the Bangalore Act could possibly correspond with those under section 4(1) of the Acquisition Act.
And, we think that to equate a resolution under section 14 of the Act with a notification under section 4(1) of the Acquisi tion Act, on a similar reasoning, would be to miss the very different purposes meant to be served by a resolution under section 14 of the Bangalore Act and a notification under section 4(1) of the Acquisition Act.
Such reasoning appears to us to be very far fetched.
Another reason given by the Full Bench of the Mysore High Court, for holding that market value should be deter mined as on the date of notification under section 18 and not that of notification under section 16 of the City of Mysore Improvement Act (both these sections, correspond to section 16 and 18 of the Bangalore Act) was that a delay of 20 years between the two notifications would make the acquisition unconstitutional.
We are unable to appreci ate the bearing of this consideration on a decision of the statutory requirements as to the date on which market value is to be determined for purposes of compensation.
If a particular acquisition becomes unconstitutional due to an unreasonable mode of exercising the statutory powers of acquisition, neither the provision which is so misused nor the meaning.
of other provisions, which are relevant for determining the date of market value, is affected.
We are constrained to observe that some of the reasons 184 given by the Full Bench of the Mysore High Court as well as the Division Benches of the Karnataka High Court have little connection with the date on which the market value has to be determined according to statutory provisions.
A pure ques tion of interpretation of fairly clearly expressed legis lative intent which should not have been permitted to be fogged by adverting to irrelevant matters.
It is true that the Bangalore Act has its own distinct purposes and prescribed modes in which they are to be car ried out.
Acquisition of land, as already observed, is a mere incident in the carrying out of those purposes.
Sec tion 26 of the Act gives, it the power to acquire land by agreement.
Section 27 of the Act reproduced above, enables the procedure 'found in the Acquisition Act to be utilised except to the extent to which the procedure for compulsory acquisition in the Bangalore Act may differ from that con tained in the Acquisition Act.
Section 27 of the Banga lore Act gives certain "further provisions" indicated under four heads.
Apparently.
these are meant to dis place corresponding actions under the Acquisition Act.
We have to identify the corresponding provisions only for the purposes of applying Section 23(1) of the Acquisition Act.
It is evident that the first of these additional provi sions enables the Board of Trustees, by virtue of section 14, to undertake what could have been done under the Acquisition Act only after a notification under section 4(1 ) of the Acquisition Act.
In other words, the deviation from the procedure laid down in the Acquisition Act is that, whereas the Agents of the Govt.
could not undertake any thing provided for by section 4(2) of the Acquisition Act without a notification under section 4(1) of the Acquisition Act, the Board of Trustees could do those very things with out any notification under section 4(1) of the Acquisition Act.
Even if we could equate the resolution under section 14 of the Bangalore Act with a notification under section 4(1) of the Acquisition Act, we could not dispense with the requirements of section 23(1) of the Acquisition Act which is the only provision applicable for determining the date of the market value.
The only result of equating a resolution under section 14 with a notification under section 4(1) of the Acquisition Act could be to shift the date of as certainment of market value farther back.
But, that is not what the respondents contend for.
The second additional provision under section 27(2) seems designed, by way of abundant caution, to clarify the mean ing of provisions of section 18 of the Act, Obviously, it prevents any construction which could enable a notifica tion under section 18 of the Bangalore Act to be equated with section 4(1) of the Act.
To hold that a notification under section 18 of the Bangalore Act could be equated with section 4(1) of the Acquisition Act, in the face of this clear provision, equating it with a notification under section 6 of the Acquisition Act, is to countenance the obvious absurdity that there is no difference between a notification under section 4(1) and section 6 of the Acqui sition Act.
A possible line of argument, in view of the 1st addi tional provision in section 27 of the Bangalore Act, could be that, since the 185 general procedure under the Acquisition Act applies, a notification under section 4(1) of the Acquisition Act itself should precede any action under section 14 of the Act which is to be equated with section 4(2) of the Acquisi tion Act.
But, that has not been the argument of any side either in the Karnataka High Court or before us.
Had that been necessary and no notification under section 4(1) of the Act had taken place, the validity of the whole acquisition proceedings could have been challenged, but, the validity of the Acquisition proceedings is not assailed before us at all.
Such a line reasoning would be also shut out by the principle that the particular and the especially provided procedure ;would exclude the more general if we hold, as we have to having regard to Section 16 of the Act, that the special procedure was meant to take the place of and to serve the same object as the general.
The argument that an additional compliance with section 4(1) of the Acquisi tion Act was necessary despite the special procedure in section 16 of the Act, which fulfils the same function, is also repelled by the correct view taken in M. Manicklal vs the State of Mysore (1) by the Mysore High court.
The real question before us is whether the market value should be determined with reference to the date of notifica tion under section 16 of the Act.
As we find that the notification under section 18 has been actually equated, by the second additional provision contained in section 27 of the Bangalore Act, with a notification under section 6 of the Acquisition Act, so that it could not be also equated with any notification under section 4(1) of the Acquisition Act and, as we also find that the provisions of section 16 of the Bangalore Act and section 4(1) of the Acquisition Act show that the obvious intention behind and objects achieved by a notification under section 16 of the Act and one under section 4(1 ) of the Acquisition Act are identical, we think that it is most reasonable to hold that it is not necessary at all, in such cases, to comply with section 4(1) of the Acquisition Act in addition to complying with section 16 of the Bangalore Act.
The general provisions of section 4(1) of the Acquisition Act are displaced by the special provisions of section 16 of the Act.
Here, we may set out the provisions of section 4 of the Acquisition Act and section 16 of the Bangalore Act to indi cate the identity of purposes and the extent of similarity of procedure.
Section A of the Acquisition Act provides: "4.
Publication of preliminary notification and powers of officers there upon. (1) Whenever it appears to the appropriate Government or the Deputy Commissioner that land in any locality is needed or is likely to be needed for any public purpose, a notification stating the purpose for which the land is needed, or likely to be needed, and describing the land by its survey number, if any, and also by its boundaries and its approximate area; shall be published in the official Gazette, and its Deputy Commissioner (1) 1967 (2) M.L.J.p.239 1414 1003SCI/76 186 shall cause public notice of the substance of such notification to be given at convenient places in the said locality.
The Deputy Commis sioner may also cause a copy of such notification to be served on the owner, or where the owner is not the occupier, on the occupier of the land.
Explanation.
The expression 'convenient places ' includes, in the case of land situated in a vil lage, the office of the panchayat within whose jurisdiction the land lies.
(1A) The notification under sub section (1) shall also specify the date, (such date not being less than thirty days from the date of publication of the notification) on or before which, and the manner in which, objections to the proposed acqui sition may be made, under section 5A. (2) On the publication of such notification it shah be lawful for any Officer, either generally or specially authorized by such Government or by the Deputy Commissioner in this behalf, and for his servants and workmento enter upon and survey and take levels of the land; to dig or bore into the sub soil; to do all other acts necessary to ascertain whether the land is adapted for such purpose; to set out the boundaries of the land proposed to be taken and the intended line of work (if any) proposed to be made thereon; to mark such levels, boundaries and line by placing marks and cutting trenches; and where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle: Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling house (unless with the con sent of .the occupier thereof) without previously giving such occupier at least seven days notice in writing of his intention to do so.
(3 ) Where the acquisition is for a company, an officer of such company may be authorised by the appropriate Government or the Deputy Commissioner to exercise the powers conferred by sub section (2).
(4) The Officer authorised, under sub section (2)or sub section (3) shall complete his investiga tion and submit his report to the Deputy Commis sioner within a period of three months (or within such longer period not exceeding six months in all as the Deputy Commissioner may allow), from the date of the publication of the notification under subsection (1).
with his remarks to the appropriate Government along with his report under sub section (2) of section 5A".
187 Section 16 of the Bangalore Act enacts: "16.
Procedure on completion of scheme. (1) Upon the completion of an improvement scheme, the Board shall draw up a notification stating the fact of a scheme having been made and the limits of the area comprised therein, and naming a place where particulars of the scheme, a map of the area comprised therein and a statement specifying the land which it is proposed to acquire and of the land in regard to which it is proposed to recover a betterment fee may be seen at all reasonable hours; and Shall (a) Copy of notification of scheme to be communicated to May or of the Corporation Communi cate a copy of such notification to the Mayor of the Corporation who shall, with in thirty days from the date of receipt thereof forward to the Board, for transmission to the Government as hereinafter provided, any representation which the Corporation may think fit to make with regard to the scheme; (b) Publication of notification.
Cause a copy of the said notification to be publication during three consecutive weeks in the Mysore Gazette and posted up in some conspicuous part of its own office, the Deputy Commissioner 's office, the office of the Corporation and in such other places as the Board may consider necessary.
(2) Service of notices on owners of property to be acquired in executing the scheme.
During the thirty days next following the day on which such notification is published in the Mysore Gazette the Board shall serve a notice on every person whose name appears in the assessment list of the Corpora tion or the Municipality or local body concerned or in the land revenue register as being primarily liable to pay the property tax or land revenue assessment on any building or land which it is proposed to acquire in executing the scheme, or in regard to which the Board proposes to recover a betterment fee, stating that the Board proposes to acquire such building or land or to recover such bettermentfee for the purpose of carrying out an improvement scheme and.
requiring an answer within thirty days from the date of service of the notice stating whether the person so served,dissents or not to such acquisition of the building or land or to the recovery of such betterment fee, and if the person dissents, the reasons for such dissent.
(3) Notice how to be served.
Such notice shall be signed by, or by the order of, the Chairman and shall be served (a) by delivery of the same personally to the person required to be served or if such person is absent or cannot be found, to his agent, or if no agent can be found, then by leaving the same on the land or building; or (b) by leaving the same at the usual or last known place of abode or business of such person as afore said; or 188 (c) by registered post addressed to the usual or last known place of abode or business of such person".
It will be set that Section 16 of the Bangalore Act provides even more elaborately for the publication of the initial notice which is given in section 4(1) of the Acquisition Act so that any representa tions which the objectors may have to make may be considered by the Board itself under section 17 of the Bangalore Act.
Thus, the object of the procedure provided by section 16 and section 17 seems to be to take the place of the notification under section 4(1) and the hearing of objections under section 5A of the Acquisition Act.
Under the Bangalore Act, it is the Board itself which gives notices and considers objections to a scheme before communicating the scheme to the Govt.
for sanction.
It is true that the Board has not been specifically given the power by the Bangalore Act to rescind the scheme.
The Bangalore Act only mentions the Board 's power to modify the scheme, if it considers that to be necessary.
After that, the Act directs the Board to send it to the Government for sanc tion.
Of course, the Govt.
could either sanction or reject the scheme.
And, in suitable cases, the Board could perhaps revoke its own resolution.
But, we need not consider or decide that question here.
All we need observe here is that a corre sponding special procedure, which we find in the provisions of section 16 of the Bangalore Act, need not necessarily be identical with the general procedure, serving the same object, which we find in section 4(1) of the Acquisition Act.
We are concerned more here with the identity of objects and functions of provisions rather than with that of precise steps prescribed or words used in them.
The next stage is found in section 18 which lays down: "18.
On receipt of sanction, declaration to be published giving particulars of land to be acquired (1) (a) On receipt of the sanction of the Govern ment,.
the Chairman shall forward a declaration for notification under the signature of a Secretary to the Government, stating the fact of such sanction and that the land proposed to be acquired by the Board for the purposes of the scheme is required for a public purpose.
(b) The declaration shall be published in the Mysore Gazette and shall state the limits; within which the land proposed to be acquired is situate, the purpose for which it is needed, its approximate area and the place where a plan of the land may be inspected.
(c) And upon such publication Board to proceed to execute the scheme.
The said declara tion shall be conclusive evidence that the Land is needed for a public purpose, and the Board shall, upon the publication of the said declaration, proceed to execute the scheme.
(2) Board to have power to alter any part of the Scheme. (a) If at any time it appears to the Board that an improvement can be made in any part of the scheme, the Board may alter the scheme for the purpose of making such 189 improvement, and shall, subject to the provisions contained in the next two clauses of this sub section forthwith proceed to execute the scheme as altered.
(b) If the estimated cost of executing the scheme as altered exceeds, by a greater sum than five per cent the estimated cost of executing the scheme as sanctioned, the Board shall not, without the previous sanction of the Govern ment, proceed to execute.
the scheme as altered.
(c) If the scheme as altered involves the acquisition otherwise than by agreement, of any land other than that specified in the schedule accompanying the scheme under section 17(2)(e), the provisions of sections 16 and 17 an sub sec tion (1) shall apply to the part of the scheme so altered, in the same manner as if such altered part were the scheme".
It will be seen that, but for the 1st additional provi sion, contained in section 27 of the Bangalore Act, perhaps it could be urged that the powers contained in section 4(2) of the Acquisition Act and the fight to damages, con tained in section 5 of the Acquisition Act, do not apply at all to acquisition under the Act.
Hence, this additional provision became necessary.
We are not called upon to determine here at what stage, powers under section 4(2) of the Acquisition Act could or should reasonably be.
exercised in a case falling under the provisions of the Bangalore Act.
Nevertheless, we may mention that it would seem more reasonable to exercise the powers provided for by section 27(1) of the Bangalore Act (i.e. powers in section 4(2) of the Acquisition Act) only after a notification under section 16 of this Act.
An examination of the provisions of the Bangalore Act and of acquisition proceedings under the Acquisition Act, contemplated by it, would reveal that, whereas the procedure from the notification under section 4 to the notification under section 6 of the Acquisition Act gives place to the procedure provided by sections 14 to 18 of the Bangalore Act, the stage at which compensation is to be determined is to be regulated entirely by the general provisions of sec tion 23 (1) of the Acquisition Act because there is no special or separate provision in the Bangalore Act to regu late the compensation payable.
It is true that section 23 is not specifically mentioned in the Bangalore Act.
But, the obvious purposes of the opening words of section 27 of the Bangalore Act seems to us to be that award of compensa tion, which is a necessary part of any law providing for acquisition, must be governed by section 23 of the Acquisi tion Act.
The last mentioned section enacts: "23.
Matters to be considered in determining compensation. (1) In determining the. amount of compensation to be awarded for land acquired under this Act, the Court shah take into consideration 190 first, the market value, of the land at the date of the publication of the 'notification under section 4, subsection ( 1 ); secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Deputy Commissioner 's taking possession thereof; thirdly, the damage (if any), sustained by the person interested, at the time of the Deputy Com missioner 's taking possession of the land, by reason of severing such land from his other land; fourthly, the damage (if any), sustained.
by the person interested, at the time of the Deputy Com missioner 's taking pOssession of the land, by reason of the acquisition injuriously affecting his other property.
movable or immovable, in any other manner, or his earnings; fifthly, if, in consequence of the acquisition of the land by the Deputy Commissioner, the person interested is compelled to change hie residence.
or place of business, the reasonable expenses (if any), incidental to such change; and sixthly, the damage (if any), bona fide result ing from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Deputy Commissioner 's taking possession of the: land.
(2) In addition to the market value of the land, as above provided, the Court shall in every case award a sum of fifteen per centum on such market value, in consideration of the compulsory nature of the acquisition".
Non specification of a different principle or procedure in the Act, governing award of compensation under the Banga lore Act, far from indicating, as learned Judges of the High Court erroneously opined, that section 23(1) of the Acquisi tion was not applicable here at all, was one of the strong est arguments for holding that it is covered by the general provisions applied by section 27 of the Bangalore Act.
An acquisition proceeding without providing for award of com pensation on some principle is unthinkable.
Such a situa tion would have invited an attack on the validity of the acquisition itself.
But, as we have already observed, there is n` such challenge here.
There was some argument on the meaning of the words "so far as they are applicable", used in section 27 of the Bangalore Act.
These words cannot be changed into: "in so far as they are 191 specifically mentioned" with regard to the procedure in the Acquisition Act.
On the other hand, the obvious intention, in using these words, was to exclude only those provisions of the Acquisition Act which become inapplicable because of any special procedure prescribed by the Bangalore Act (e.g. section 16)corresponding with that found in the Acqui sition Act (e.g. section 4(1).
These words bring in or make applicable, so far as this is reasonably possible, general provisions such as section 23(1) of the Acquisition Act.
They cannot be reasonably construed to exclude the application of any general provisions of the Acquisition Act.
They amount to laying down the principle that what is not either expressly, or, by.
a necessary implication,, excluded must be applied.
It is surprising to find mis construction of what did not appear to us to be reasonably open to more than one interpretation.
Learned Counsel for the respondents, rather desparately, attempted to argue that, as there was no procedure or prin ciple laid down at all for award of compensation in the Bangalore Act, we should invoke the aid of Equity and hold that the market value should be determined with reference to the date of notification under section 18 of the Act.
We do not think that such an argument could be advanced at all in the face of the provisions of section 27(2) which clearly equate a notification under section 18 of the Bangalore Act with the notification under section 6 of the Acquisition Act.
We know the maxim that "equity follows the law".
We have not heard of the proposition that some transcendental Equity should be so used as to defeat or amend the ' law as it stands.
Maitland said long ago that equity came to supplement and not to supplant the law.
We think that, if we were to aquate a notification under section 18 with the notification under section 6 of the Act for purposes of determining the market value, which is to be awarded, we would be doing nothing short of supplanting at least 'the law as found clearly laid own in section 27 of the Banga lore Act read with section 23 of the Acquisition Act.
We think that the Division Bench of ' the Karnataka High Court had seriously misdirected itself in not giving effect to obvious meanings of the plain words used in statutes under consideration.
Another contention which found favour in the Karnataka High Court was that a judgment filed by the respondents claimants m Civil Appeals Nos. 644 650 of 1974, when they appealed to the Karnataka High Court against the ' orders passed by a Civil Judge of Bangalore, on a reference made under the Acquisition Act, could be accepted as additional evidence under Order 41, Rule 27 C.P.C. on the ground that it.
was relevant, evidence for the purpose of determining compensation of lands which were the subject matter of appeals before the High Court.
The reasons given for admit ting, at the appellate stage, a judgment of the High Court, which had not been filed before the Trial Court, were: firstly, that it was not available when the proceedings were pending in the Trial Court; and secondly, that lands dealt with by the judgment were adjacent to the lands the value of which needed determination, and that both sets of 192 lands were acquired at different stages of what is known as the "layout scheme within the limits of Bhinnamangala vil lage '.
The High Court overruled the objection that the judgment admitted as additional evidence was not final inasmuch as an appeal against it was pending in this Court.
We find that the High Court did not consider it, for some reason, necessary to refer to the provisions of the Indian Evidence Act which regulate the admissibility of all evi dence including judgments.
There could be no question of res judicata in such a case.
The previous judgment was not between the same parties.
Furthermore, the appellant was not given any opportunity of showing that the judgment related to land which was at some distance from the lands whose value was to be determined or that its site value was, for some reason, higher.
Even the time at which the value of the other land was determined was not shown to be identical.
Such judgments are not judgments in rem.
They are judgments in personam.
The general provision of law governing admissibility of all judgments, whether they are judgments in rem or judgments in personam operating as res judicata, is section 43 of the Evidence Act which reads as follows: "43.
Judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judg ment, order or decree, is a fact in issue, or is relevant under some other provision of this Act".
It is apparent that section 43 enacts that judgments other than those falling under sections 40 to.
42 are irrel evant unless they fall under some other provision of the Evidence Act; and, even if they do fall under any such other provision, all that is relevant, under section 43 of the Evidence Act, is "the existence" of such judgment, order, or decree provided it "is a fact in issue, or is relevant under some other provision of this Act".
An obvious instance of such other provision is a judgment falling under section 13 of the Evidence Act.
The illustration to section 13 of the Evidence Act indicates the kind of facts on which the existence of judgments may be relevant.
In Special Land Acquisition Officer, Bombay vs Lakhamsi Ghelabhai,(1) Shelat J, held that judgments not inter partes, relating to land acquired are not admissible merely because the land dealt with n the judgment was situated near the land of which the value is to be determined.
It was held there that such judgments would fall neither under section 11 nor under section 13 of the Evidence Act.
Ques tions relating to value of particular pieces of land depend upon the evidence in the particular case in which those facts are proved.
They embody findings or opinions relating to facts in issue and investigated in different cases.
The existence of a judgment would not prove he value of some piece of land not dealt within at all in the judgment admit ted in evidence.
Even slight differences in situation can, (1) 193 sometimes, cause considerable differences in value.
We do not think it necessary to take so restrictive a view of the provisions of Sections 11 anti 13 of the Evidence Act as to exclude such judgments altogether from evidence even when good grounds are made out for their admission.
In Khaja Fizuddin vs State of Andhra Pradesh,(1) a bench of three Judges of this Court held such judgments to be relevant if they relate to similarly situated properties and contain determinations of value on dates fairly proximate to the relevant date in a case.
The Karnataka High Court had, however, not complied with provisions of Order 41, Rule 27 of the C.P.C. which require that an Appellate Courts should be satisfied that the additional evidence is required to enable them either to pronounce judgment or for any other substantial cause.
It had recorded no reasons to show that it had considered the requirements of Rule 27, Order 41, of the C.P.C. we are of opinion that, the High Court should have recorded its rea sons to show why it found the admission of such evidence to be necessary for some substantial reason.
And if it found it necessary to admit it, an opportunity should have been given to the appellant to rebut any inference arising from its existence by leading other evidence.
The result is that we allow these appeals and set aside the judgment and order of the Karnataka High Court and direct it to decide the cases afresh on evidence on record, so as to determine the market value of the land acquired on the date of the notification under section 16 of the Bangalore Act.
It will also decide the question, after affording parties opportunities to lead necessary evi dence, whether the judgment, sought to be offered as addi tional evidence, could be admitted.
The parties will bear their own costs.
V.P.S. Appeal allowed.
(1) C.A. No. 176 of 1962, decided on 10 4 1963.

summary/full:
The City of Bangalore Improvement Act, 1945, is con cerned with the improvement and future expansion of the city, and for the appointment of a Board of Trustees with special powers to carry out that purpose.
an incident of such improvement and expansion, it provides for acquisi tion of land also.
.Section 16 of the Act provides for the publication of a notice so that any representations which objectors may make may be considered by the Board itself under section 17.
The object of the two sections is to provide for the notification similar to that under 5.
4(1), Mysore Land Acquisition.
1894, and for hearing of objections as under section 5A, of that Act.
Section 18 of the Bangalore Act provides for the publication in the Gazette of the declaretion that the land is acquired for a public; purpose.
Section 27 provides that acquisitions otherwise than by agreement, shall be regulated by the provisions of the Acquisition Act in so far as they are applicable and by certain further provisions in the section.
Section 27(1) provides that upon the passing of a resolution by the Board that an improvement scheme under section 14 is necessary in respect of any locality, it shall be lawful for any person, authorised by the Board to do all such acts in respect of the land as it would be lawful for an officer duly autho rised by the Government under section 4(2) of the Acquisition Act; and under section 27(2) the publication Of a declaration under section 18 shall be deemed to be the publication of a declaration under section 6, Acquisition Act In the present case, the notifications under section 16 of the Bangalore Act were issued in 1960 and the notifications under section 18 were published in 1967.
On the question as to which date was to be taken for the determination of the market value for the purpose of awarding compensation, the High Court held that the date of notification under section 18 is the relevant date.
The High.
Court held that decision of Full Bench of the High Court in Venkatamma vs Special Land Acquisition Officer (AIR covered the ques tion: and it also relied on another decision of the Court, determining compensation with respect of the acquisition of certain other lands, as relevant evidence for the purpose of determining compensation in the instant case.
In appeal to.
this Court the respondent also supported the judgment of the High Court on the ground that section 23(1) of the Acquisition Act which provides that the determination of the market value should be as on the date of the publication of a notification under section 41(1), would not apply, because, (a) No. principle o.r procedure governing award of compensation is specified in the Bangalore Act, (b) the words "so far as applicable", used in section 27, are equivalent to "in so far as they are specifically mentioned"; and section 23(1) is not so specifically mentioned; and, (c) since No. procedure or principle is laid down for the= award of compensation in the Bangalore Act, it would be equitable to hold that the market value should be determined with reference to the late.r date of.
the notification under s 18 of the Act.
Allowing the appeal, HELD: The matter should be remanded to the High Court for determination of the market value of the land as on the date of the notification under 179 section 16 of the Bangalore Act, which corresponds to.
the notification under section 4(1 ) of the Acquisition Act, after affording opportunities to the parties whether the judgment sought to be offered as additional evidence could be so admitted shall be decided.
[193 E F] (1)(a) The Full Bench of the High Court, while inter preting the City of Mysore Improvement Act, 1903, observed that the Acquisition Act had been amended in 1927 so as to make compensation payable as on the date of the notification under section 4(1) of that Act instead of the date of notifica tion under section 6 according to the unamended law and but that, in the Mysore Act, there was no corresponding amendment.
Therefore, the Mysore Act had to be construed with refer ence to the provisions of the Land Acquisition Act as it stood in 1903.
[182 F G] But, the Bangalore Act, even though its corresponds substantially with the provisions of the Mysore Act of 1903, should be interpreted with reference to the Acquisition Act as it stood in 1945, because, the Bangalore Act was, enacted in 1945.
[182 H] (b) The Full Bench also held that if there was long delay between the two notifications, the acquisition itself would be unconstitutional, and the.re.fore the date of notifica tion under section 18 would be the relevant date.
The delay between the dates of notification under section 16 and under section 18 would not have any bearing on the question of the date on which the market value is to, be determined, because, if a particular acquisition becomes unconstitutional due to an unreasonable mode.
of exercising the statutory powers of acquisition, the meaning of provisions, which are relevant for determining the date of market value, could not be affected.
[183 F H, 184 A] (2) Under section 43, Evidence Act, judgments other than those falling under sections 40 to 42, Evidence Act are irrele vant unless they fall under some other provisions of the Evidence Act.
In the present case, the earlier judgment of the High Court cannot operate as resjudicata because it is not between the same parties.
Such judgments are also not judgments in rem.
However, in Khaja Fizuddin vs State of Andhra Pradesh (CA.
No. 176 dt. 10 4 1963) this Court held that such judgments would be relevant if they relate to similarly situated properties and contain determinations of value on dates fairly proximate to the relevant date in a case.
BUt, in the present case, the appellant was not given any opportunity of showing that the earlier judgment related to dissimilar land.
The High Court also did not comply with the provisions of 0.41 r. 27, C.P.C. before admitting the earlier judgment as additional evidence.
It had recorded no 'reasons to show that it had considered the requirements or ' the rule and why it found the admission of such evidence to be necessary.
[191 G H, 192 B H 193 A B] Special Land Acquisition Officer, Bombay vs Lakhamsi Ghelabhai, , referred to.
(3)(a) Section 27 of the Bangalore Act enables the procedure in the Acquisition Act to be utilised except tel the extent to which the procedure in the bangalore Act may differ from that in the Acquisition act.
These difference section 27(2) and (2); are: (i) that the Board of Trustees could do the: things provided for in section 4.(2) of the Acquisition: Act without a notification under section 4(1); and (ii) the notifica tion under section 18 of the Bangalore Act is equated to the one under section 6 of the Land Acquisition Act.
Therefore, even though section 23 of the Acquisition Act is ' not specifically mentioned in the Bangalore Act, the obvious purpose of the opening words of section 27 of the Bangalore Act, and the effect of non specification of a different principle in the Banga lore Act, is that the award of compensation, which is a necessary part of any law providing for acquisition must be governed by section 23 of the Acquisition Act, which is the only provision applicable; for determining the date of market value.[189 D G] (b) The words "so far as they are applicable" cannot be equated to in so far as they are specifically mentioned.
" The words are used to exclude only those provisions of the acquisition Act which become inapplicable, because 180 of the special procedure prescribe.d by the Bangalore Act.
They cannot be construed as excluding the application of general provisions such as section 23 of the Acquisition Act.
They amount to stating that what is not either expressly or by necessary implication excluded must be applied.
[190 H, 191 A B] (c) Equity supplements but does not supplant law.
If, in the face of the provision that the notification under section 18, Bangalore Act is equated with a notification under section 6 of the.
Acquisition Act for the purpose of determining the market value for awarding compensation, some transcendental principle of ' equity is applied, then, it would be supplant ing the law laid down in section 27 of the Bangalore Act read with section 23 of the Acquisition Act.
It would also be absurd to hold that a notification under s.18, Bangalore Act, could be equated with a notification under section 4(1) Acquisition Act.
Therefore, the relevant date would be the date of notification under section 16, because, the objects achieved by a notification under section 16, Bangalore Act, and one under section 4, Acquisition Act are identical.
In the Full Bench decision of the High Court, it was held.
relying on section 23 of the City of Mysore Improvement Act, 1903 that section 14 of that Act should be equated to section 4(1) of the Acquisition Act.
But in view of the provisions of r. 27 of the Bangalore Act, the only result of equating a resolution under section 14 of the Bangalore Act with a notification under section 4(1) of the Acquisition Act would be to shift the date of ascertaining of market value still further back which is not the conten tion of the respondents.
[191 A, F] OBITER: An additional compliance with section 4(1) of the Acquisition Act is not necessary in view of the special procedure unders.
16 of the Bangalore Act: and, it would be reasonable for the authorities to exercise the powers pro vided for by section 27(1) of the Bangalore Act, corresponding to those in section 4(2) of the Acquisition Act, only after the notification under section 16 of the Bangalore Act.
[185 B.C] M. Manicklal vs The State of Mysore approved.


judgement:
ivil Appeal No. 18 '1 of 1974.
Appeal by special leave from the judgment and order dated the 18th June 1974 of the Andhra Pradesh High Court at Hyderabad in Writ Appeal No. 460 of 1974.
K. R. Nambiar for the appellant.
L. N. Sinha, Sol.
General of India and Girish Chandra for respondents.
The Judgment of the Court was delivered by SARKARIA, J.
This is an appeal by special leave against a judgment of the High Court of Andhra Pradesh.
The appellants are office bearers of the Civil Employees Unions in the various Centers of the Defence Establishments of Secunderabad and Hyderabad.
They filed a writ petition in the High Court to impugn the authority of the Commandants (Respondents 2 and 3 herein) in declaring the Unions, represented by the appellants as unlawful associations.
The Registrar of Trade Unions had issued Certificates of Registration to the four Unions represented by the appellants between 1954 and 1970.
The General Secretary of Class IV, Civil Employees Union, Bolaram, Secunderabad was informed, per letter dated 770 12 5 1971, by the Under Secretary of the Government of India, Ministry of Defence that their Unions could not be granted recognition as these employees being in the Training Establishments, were not entitled to form Unions.
The Commandant also issued a notice to the appellants to show cause why disciplinary action be not taken against them for forming this unlawful association.
The main ground taken in the petition was that the impugned action was violative of their fundamental right to form associations or Unions conferred by article 19(1)(c) of the Constitution.
In their reply affidavit, the respondents averred that the Civilian Non Combatants in the Defence Establishments were governed by the and were duly prohibited by Rules framed thereunder from joining or forming a Trade Union; that the associations in question were formed in breach of that prohibition, and were therefore, validly declared illegal.
The learned Judge of the High Court, who tried the petition, held that the right of the appellants to form associations given by article 19(1) (c) of the Constitution, had been lawfully taken away.
He accordingly dismissed the petition.
The appellants carried an appeal to the appellate Bench of the High Court.
The Bench dismissed the appeal holding that the impugnea action was not without jurisdiction.
The main contention of Mr. K. R. Nambiyar, appearing for the appellants is that the members of the Unions represented by the appellants, though attached to the Defence Establishments, are civilians ', designated as "Non Combatants Un Enrolled".
They include cooks, chowkidars, laskars, barbers, carpenters, mechanics, boot makers, tailors etc.
They are governed by the Civil Service Regulations for purposes of discipline, leave, pay etc.
and are also eligible to serve upto the age of 60 years unlike that of the members of the Armed Forces.
In view of these admitted facts, proceeds the argument, these categories of civilian employees, attached to the Defence Establishments, could not be validly called "members of the Armed Forces" covered by article 33 of the Constitution.
The points sought to be made out are: that the members of the appellants ' Unions are not subject to the as they do not fall under any of the categories enumerated in sub clauses (a) to (i) of section 2 of the , and that the impugned notifications are ultra vires the and are struck by articles 19(1)(c) and 33 of the Constitution.
For reasons that follow, the contentions must be repelled.
Article 33 of the Constitution provides an exception to the pre ceding Articles in Part III including article 19(1) (c).
By Article 33, Parliament is empowered to enact law determining to what extent any of the rights conferred by Part III shall, in their application, to the members of the Armed Forces or Forces charged with the main tenance of public order, be restricted or abrogated so as to ensure 771 the proper discharge of their duties and the maintenance of discipline among them.
In enacting the , in so far as it restricts or abrogates any of the fundamental rights of the members of the Armed Forces, Parliament derives its competence from Art.33 of the Constitution.
Section 2(1) of the Act enumerates the persons who are subject to the operation of this Act.
According to sub clause (i) of this section, persons governed by the Act, include "persons not otherwise subject to military law who, on active service, in camp, on the march or at any frontier post specified by the Central Government by notification in this behalf, are employed by, or are in the service of, or are followers of, or accompany any portion of the regular army.
" The members of the Unions represented by the appellants fall within this category.
It is their duty to follow or accompany the Armed personnel on active service, or in camp or on the march.
Although they are non combatants and are in some matters governed by the Civil Service Regulations, yet they are integral to the Armed Forces.
They answer the description of the "members of the Armed Forces" within the contemplation of article 33.
Consequently, by virtue of section 21 of the , the Central Government was competent by notification to make rules restricting or curtailing their fundamental rights under article 19(1) (c).
Rule 19(ii) of the Army Rules, 1954, imposes a restriction on the fundamental rights in these terms.
"No persons subject to the Act shall without the express sanction of the Central Government: (i) xx xx xx (ii) be a member of, or be associated in any way with, any trade union or labour union, or any class of trade or labour unions " In exercise of its powers under s.4 of the Defence of India Act, the Government of India has by notification dated 11 2 1972, provided that all persons not being members of the Armed Forces of the Union, who are attached to or employed with or following the regular Army shall be subject to the military law.
The , has also been made applicable to them.
By another notification dated 23 2 1972, issued under r.79, of the Army Rules, civilian employees of the training establishments and Military Hospitals have been taken out of the purview of the Industrial Disputes Act.
Section 9 of the further empowers the Central Government to declare by notification, persons not covered by section (i) of section 3 also as persons on active service.
772 In view of these notifications issued under s.4 of the Defence of India Act and the Army Rules, the appellants can no longer claim any fundamental right under article 19 (1) (c) of the Constitution.
The appeal fails and is dismissed.
There will be no order as to costs.

dataset_name: IN-Abs

summary/full:
On the question whether civilian employees of Defence Establishments have the right to form trade unions under Art, 19(1) (c) of the Constitution, ^ HELD: Article 33 of the Constitution provides an exception to the Preceding Articles in Part III including Act.
19(1)(c).
By article 33, Parliament is empowered to enact law determining to what extent any of the rights conferred by Part III shall.
in their application to the members of the armed forces or forces charged with the maintenance of public order, be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.
[770GH, 771A] By virtue of section 2(l) of the , the Central Government was competent to make rules restricting or curtailing the Fundamental Rights of civilian employees of Defence Establishments to form trade unions under article 19(1)(c) of the Constitution.
Although they are non combatants and are in some matters governed by the civil service regulations, yet they ar? integral to the armed forces.
They answer the description of the members of the armed forces within the contemplation of article 33.
[771 B D]


judgement:
Civil Appeals Nos.
36 to 54 of 1971.
Appeals by special leave from the judgment and order dated 25 8 1970 of the Labour Court, Hyderabad in Civil Misc.
Petitions Nos.
133 to 147 and 165 to 168 of 1970.
AND Civil Appeal No. 1153 of 1972.
Appeal by special leave from the judgment and order dated 20 10 71 of the Labour Court, Hyderabad in Misc.
Petition No. 64/71.
AND Civil Appeal No. 312 of 1973.
Appeal by special leave from the judgment and order dated 11 2 1972 of the Labour Court, Hyderabad in Misc.
Petition No. 239/70.
AND Civil Appeals Nos.
325 to 339 of 1973.
Appeals by special leave from the judgment and order dated 7th, 9th, 11th and 15th February, 1972 of the Labour Court Hyderabad in Misc.
Petitions Nos.
231 238/70, and 240 246/70.
L.N. Sinha, Sol.
General of India and B. Parthasarthy, for the appellants.
G. Narayana Rao and K.S. Ramanujacharyulu, for the respondents.
The Judgment of the court was delivered by BEG, J.
A number of appeals filed by the Andhra Pradesh State Road Transport Corporation are before us by grant of special leave under Article 136 of the Constitution of India, against orders of a Labour Court passed under section 33C(2) of the .
The facts of the first of these appeals may be stated to illus trate the kind of circumstances in which a common question of law involved in these appeals arises.
The respondent P. Venkateswara Rao, who was employed on 6th October, 1933, retired on 10th February, 1958, after putting in more than 34 years of service.
As he was a former employee of the Nizam 's State Railway, his service condi tions were governed by the provisions of the Government of Hyderabad, Railway Department Establishment Code of 1949 (hereinafter referred to as 'the Code ').
He claimed that he was entitled to receive a gratuity at a half month 's salary for 18 1003 SCI 76 250 each year of qualifying service subject to a maximum of 15 months ' salary as laid down in Rule 8.01 of the Code, which says: "8.01.
Condition of eligibility.
Gratuity is granted at the discretion of Government in the Railway Department as a reward for good, efficient, continuous, and faithful service to a permanent railway servant if he is not a subscriber to the Provident Fund or to the Guaranteed Provident Fund, on his quitting the service, or, in the event of his death before receipt of gratuity to his widow or widows and/or dependent children.
For pur poses of this rule a monthly paid railway servant borne on the temporary establishment whose pay is charged to open line capital and revenue works on which he is employed shall be deemed to be a perma nent railway servant only after he had rendered 4 years ' continuous service, ' railway servants be longing to the category of workshop staff, employed otherwise than in a supervisory capacity, shall also be considered as permanent railway servants only after they have rendered 4 years ' continuous service".
The other rules which seemed to have a bearing on the question before us are as follows: "8.02.
A gratuity cannot be claimed as of right.
No gratuity shall be granted to a railway servant who has been removed from service by reason of any misconduct on his part, save with the ex press sanction of the authority competent to sanc tion the gratuity.
Qualifying service.
Except where otherwise provided for in these rules, service must be con tinuous and must also, in the opinion of the Gener al Manager, be "good", "efficient" and "faithful" service to qualify for the gratuity.
A gratuity may be granted on the fulfilment of the following conditions : (i) Completion of thirty years ' service; or (ii) Attainment of the age of fifty five years, provided not less than fifteen years ' serv ice has been completed; or (iii) Retirement or resignation after fifteen years ' service, on grounds admitted by the authori ty competent to sanction the gratuity as good and sufficient from the point of view of the Adminis tration; or (iv)Retirement with less than fifteen years ' service, due to (a) permanent physical or mental 'incapacity, or (b) abolition of appointment if other suitable employment cannot be found for the railway servant.
251 8.12.
The maximum period of service qualifying for gratuity is thirty years.
A railway servant who is retired in service after he has attained the age of fifty five years may be permitted to count the whole of his service, subject to the limit of thirty years, as qualifying for, gratuity.
Service for which a railway servant has already received a retiring gratuity or special contribution to the provident fund or to the guaranteed provident fund counts as qualifying service for the purpose rule 8.05 but it shall be excluded in calculating the amount of gratuity admissible under rule 8.19.
When a railway servant is injured in the performance of his duty and is obliged to leave the service, he may be given the gratuity he had earned under these rules in addition to any compensation gratuity awarded to him on account of his injury.
Breaks in service. (i) Ordinarily, a break in the service of a railway servant entails forfeiture of his past service, but, in deserving cases, this rule may be relaxed under orders of the Government in the Railway Department, or in cases of breaks not exceeding fifteen days in respect of railway servants other than Class I or Class II under the orders of the General Manager, the period of break whether in permanent or temporary service or both being treat ed as dies non.
(ii) A railway servant who has been discharged from the service may, subject to the other conditions of these rules, on re employment on the Railway, be permitted to add the period of his former qualifying service to his future service for the purpose of determining the gratuity admissible to him.
Amount of gratuity.
The amount of gratuity admissible shall be as follows: (i) In cases of less than fifteen years ' qualify ing service falling under rule 8.05(iv) above, a gratuity limited ordinarily to half a month 's pay, and, in special cases, where circumstances warrant, to one month 's pay, for each year of qualifying service, subject to a maximum of six months pay in all.
(ii) In all other cases falling under the rules in this chapter half a month 's pay for each year of qualifying service, subject to a maximum of fifteen months ' pay" 252 The respondent claimed Rs. 3962.50 as gratuity.
The defence of the appellant was, inter alia, that a sum of Rs. 3962/ had already been paid to the respondent on 13th March, 1968, as a special con tribution to Provident Fund.
It was urged that no employee is entitled to any grant at all if he is a subscriber to Provident Fund.
It is pointed out that Rule 8.01 set out abOve made a claim of pay ment of gratuity admissible in those cases where the employee was not a subscriber to the Provident Fund.
On the face of it, this contention, which has been repeated before us, seems to be sound and unanswerable.
The Labour Court had, however, over ruled the main defence of the appellant on the strength of a previous proceeding under section 15(2) of the Payment of Wages Act, in which the respondent had claimed a payment out of his gratuity, to the extent of 2,000/ , on the ground that the gratuity claimable fell within the definition of "wages" under the Payment of Wages Act.
It had been held that he was entitled to such payment although he was a subscriber to a Provident fund.
In that case, the respondent had applied only for deducting Rs. 1256.79 due from him to the Co operative Credit Society of the appellant Corporation from the gratuity which would have become payable to him on retirement.
He was declared entitled to Rs. 1630/only.
The two issues framed in that case were as follows: 1.
Whether gratuity is wages within the meaning of payment of Wages Act ? 2.
Whether the Corporation had the discretion to refuse to pay the gratuity to the respondent and whether it cannot be questioned ? The case had gone up to the High Court of Andhra Pradesh in revision under Section 115 Civil Procedure Code.
The High Court, while rejecting the objection advanced on behalf of the appellant Corporation in a case arising out of the proceeding under the Payment of Wages Act, had observed that Rule 8.15 indicated that Rule 8.01 did not stand in the way of awarding gratuity to a person who is also entitled to the Provident Fund.
We are unable to read Rule 8.15 in the same way as the High Court had done it in the earlier case.
We think that Rule8.15 only explains how Rule 8.05 was to be applied in certain cases.
It lays down that the period for which gratuity of retirement or contribution to the Provident Fund had been received will count towards the qualifications laid down in Rule 8.05.
It then clarifies that this period will not, however, affect the calculation of the amount of gratuity under Rule 8.19.
The obvious intention of Rule 8.15 was that the amount already received either as gratuity or contribution to the Provident Fund will not be paid again to the employee.
The period for which payments had already been made, which may happen in certain cases, such as those of broken service or of anticipatory payments, like the one to satisfy debt of the respondent P. Venkates wara Rao, to the Cooperative Society, would, nevertheless, count towards the qualifying period prescribed by Rule 8.05.
253 On the strength of the judgment of the High Court, in the previous proceeding, which was the basis of the decision of the Labour Court, Learned Counsel for the respondent had put forward a preliminary objection that the matter cannot be reagitated.
It is clear that the provisions of Section 11 C.P.C. have no application to such a case.
The nature of the proceedings and of authorities before which the claims were made were different.
It is, however, urged that the principles of res Judicata should bar raising the same question once again in a subsequent proceeding.
It is true that the High Court had made observations which had a clear bearing on the question to be decided subsequently, but, it will be noticed that the question now before us was not directly the subject ,matter of the issues framed in the previous proceeding which have been set out above.
Nevertheless, an objection was taken on behalf of the appel lant.
that a basic condition for the eligibility of a claim for gratuity had not been satisfied inasmuch as the re spondent was a subscriber to a Provident Fund.
This objec tion had been over ruled.
It was held that the gratuity could be claimed as of right.
We do not know what direction was exactly given in that case.
The finding, however, that the petitioner was entitled to a payment of gratuity, as of right, to the extent of Rs. 1630/ , appears to have been given as a result of the decision that he was entitled to the payment of this much gratuity and no more for the purposes of the claim made in the proceedings under the Payment of Wages Act.
It seems to us that, when gratuity was awarded in a previous proceeding, as a part of Wages, in the teeth of the clear provision of Rule 8.01 imposing a condition precedent, which was not satisfied, to eligibility for it, it is diffi cult to hold that such a patently illegal view could or should be held to be binding on the parties in a subsequent claim for gratuity on the same footing, before the Labour Court.
We find that, even if we were to hold, as we think we must, as the matter was not taken further, that the declaration of entitlement to Rs. 1630/ in the previous proceeding should be held to be binding between parties, we cannot apply the same reasoning to the subsequent claim made before the Labour Court which is now before us.
The Labour Court had not even deducted the amount already awarded earlier from the amount awarded by its judgment now before us.
The most we can say is that the previous recog nition of a claim to gratuity, practically in excess of jurisdiction to do so, debars the Labour Court from going into the question whether the respondent was rightly paid that amount as gratuity in the past.
We have already set out the rule which disentitles him from being eligible for the award of gratuity when he contributes to a provident fund also.
We have also interpreted the rule which was misunderstood earlier by the High Court.
We need not here set out the relevant provident fund rules contained in Chapter 7 of the Code.
It is true that the whole idea of the Provident Fund, to which the employer also contributes, seems to be different from a gratuity to which "good, continuous, efficient and faithful servant" may entitle an employee, yet, we are unable to hold 254 that the employee is able to claim the benefit of ,both a ,guaranteed or other Provident Fund, to which the employer contributes, as well as to gratuity, as of right, in the face of the provisions of Rule 8.01 and 8.02 of the gratuity rules set out above.
Although we have held that a claim to gratuity, as of right, cannot be put forward, under the Code, by an employee who gets the benefit of a Provident Fund also, yet illegal payments of gratuity in the past will not affect legal claims .to
Provident Fund.
In Civil Appeal No. 1153 of 1972, the amount awarded to an employee was in respect of payment due towards the guaranteed Provident Fund which had nothing to do with a claim for gratuity.
This claim was, therefore rightly allowed.
Civil Appeals No. 36 to 54 of 1971 and Civil Appeals Nos.
325 to 339 of 1973 involve only claims to gratuity by persons who are entitled to Provident Fund.
These claims, according to the view taken by us, are not admissible under the law.
Similar is the position in Civil Appeal No. 312 of 1973.
For the reasons given above, we allow Civil Appeals Nos.
36 to 54 of 1971, and Civil Appeal No. 312 of 1973, and Civil Appeals Nos. 325 to 339 of 1973, and dismiss the claims under Section 33C (2) of the , of the respondents in these appeals.
We, however, dismiss the Civil Appeal No. 1153 of 1972.
The parties will bear their own costs.
S.R. C.As. 36 54/71, 312/73 and 329 339/73 allowed.
No. 1153/72 dismissed.

summary/full:
In APSRTC vs Rammohan Rao (Civil revision petition No. 1598/1968, dated April 25, 1969), the High Court of Andhra Pradesh held: (i) that wages under section 2(iv)(d) of the Payment of Wages Act included gratuity and (ii) that Rule 8.01 of the Hyderabad Government Railway Establishment Code, 1949, did not stand alone and read with Rule 8.15 it meant that an employee who has received the Provident Fund was not disentified to gratuity.
Following the said deci sion, the labour court in a11 the appeals allowed the claims of the respondents to gratuity in addition to Provident Fund vide its order dated August 25, 1970.
Dismissing the appeals by special leave the Court, HELD: (i) Rule 8.15 of the Hyderabad Government Railway Establishment Code, 1949, cannot be read in the same manner as the Andhra Pradesh High Court had done it in the earlier case.
Rule 8.15 only explains that the how Rule 8.05 was to be applied in certain cases.
Rule 8.05 lays down that the period for which gratuity on retirement or contribution to the provident Fund has been received will count towards the qualifications in Rule 8.05 and further clarifies that the period will not, however, affect the calculation of the amount of gratuity under Rule .8.19.
The obvious intention of Rule 8.15 was that the amount already received either as gratuity or contribution to the Provident Fund will not be paid again to the employee.
The periods for which payments had already been made which may happen in certain cases, would nevertheless count towards the qualifying period prescribed by Rule 8.05.
[242F H] (2) When gratuity was awarded in a previous proceeding as a part of wages in the teeth of the clear provision of Rules 8.01 imposing a condition precedent which was not satisfied to eligibility for it, the contention that such a patently illegal view could or should be held to be binding on the parties in a subsequent claim for gratuity on the same too.ting is unacceptable.
The most the court can say is that the previous recognition of a claim to gratuity, prac tically in excess of jurisdiction to do so, debars the labour court from, going into the question whether the respondent was rightly paid that amount as gratuity in the past.
In the instant ease, the provisions of section 11 of the C.P.C. have no application.
[253 D G] (3) It is true that the whole idea of the Provident Fund to which the employer also contributes, seems to be.
different from a gratuity to which "good.
continuous, effi cient and faithful" service may entitle an.
employee yet he cannot claim the benefit of both the guaranteed or other Provident Fund to which the 249 employer contributes as well as to gratuity as of right in the face of the provisions of Rule 8.01 and 8.02 of the Gratuity rules.
Illegal payments of gratuity in the past will not affect legal claims to Provident Fund.
[253 H. 254, A] Andhra Pradesh State Road Transport Corporation vs
M. Rammohan Rao (Civil) Revision Petition No. 1598/1968 decided on April 25, 1969), (A.P.), over ruled.


judgement:
Appeals Nos. 907 909/74.
Appeals by Special Leave from the Judgment and Order dated 27 3 73 of the Kerala High Court in O.P. Nos.
375 377/73 respectively.
CIVIL APPEAL No. 1354/75 Appeal by Special Leave from the Judgment and Order dated 9 7 75 of the Kerala High Court in C.R.P. No. 949/74.
CIVIL APPEAL No. 1355/75 Appeal by Special Leave from the Judgment and Order dated 19 6 75 of the Kerala High Court in C.R.P '.
No. 611/74.
M.M. Abdul, Advocate Genera1 for the State of Kerala, and K.M. K. Nair for the Appellants in CAs.
907 909/74 for rr.
in CAs.
18541855/ '75.
T.S. Krishnamoorthy lyer and P.K. Pillai; for the Appel lants in.
1354 1355/75.
Miss Lily Thomas for the Respondents in CAs.
908 909/74.
The Judgment of the Court was delivered by SHINGHAL, J.
Civil Appeals Nos. 907, 908 and 909 of 1974 are by the State of Kerala and the Land Board, Trivan drum.
They are directed against a common judgment of the Kerala High Court dated July 27, 1973.
Civil Appeals Nos.
1354 and 1355 of 1975 are by petitioners who had.
applied for revision of the orders of the Taluk Land Board, Ala thur, dated June 11, 1974 and April 27, 1974.
High Court dismissed the revision petitions by two separate judgments dated July 9, 1975 and June 18, 1975.
All the appeals are by special leave.
We have heard them together at the instance.
of the learned counsel for the parties, and will examine them in a common judgment.
The controversy in all the cases relates to the.
appli cation of certain provisions of the KeraIa Land Reforms Act, 1963, hereinafter referred to as the Act, to the impugned voluntary transfers of Kayal lands.
The State of Kerala feels aggrieved because the High Court has taken the view that the transfers made between September 15, 1963 and January 1, 1970 had to be "recognised and Kayal lands comprised therein excluded in reckoning the ceiling area and the excess lands to be surrendered after January 1;, 1970.
" The grievance of the other two appellants is that their revision petitions were dismissed even though the gift deeds in their favour were valid and did not fall within the mischief of section 84(11) of the Act.
We shall examine these.
points of controversy but, before doing.
so, it may be mentioned that the validity of certain provisions.
of the Act was also challenged ' in the High Court, in the three petitions which were disposed of by the common judgment dated July 27, 1973, but the High Court upheld them.
There is no such controversy before us as the Act, and the Acts which have amended it, have: been specified in the Ninth Schedule to the Constitution.
It may also be men tioned that we have ' not had the advantage; of hearing any one on behalf of the respondents 275 in Civil Appeals Nos.
907 to.
909 of 1974 as Miss Lily Thomas,, who represented the respondents in Civil Appeals Nos. 908 and 909, informed the Court, at the commencement of the arguments, that they were not interested in the contro versy.
While examining the petitions which are the subject matter of appeals Nos.
907 to 909 of 1974, the High Court thought it sufficient to refer only to the facts of original petition No. 283 of 1973.
That case is not before us, but that would not matter as the appeals can be disposed of without reference to the details of that case.
It will be sufficient to say that the petitioner in that case was M.T.J. Joseph, and the controversy centered round a settle ment deed (exhibit P 8 made by him in favour of his children on June 15, 1957.
The appellants in the three appeals (Nos. 90.7 909) are M.T.J. Joseph 's children.
As has been stated, the High Court examined the consti tutional validity of the provisions of the Act and upheld them.
It next examined the question whether lands in excess of the ceiling area were in the lawful or permissive occupation of the petitioners (in the petition before the High Court), with reference to the argument that in view of the terms of exhibit RI, by which some of the excess lands were assigned to the holder, the occupation commenced with an implied permission on payment of the state dues.
The High Court did not however think it proper to.
express its final views on that aspect of the matter as it found that certain proceedings were pending before the authorities concerned.
It therefore left the matter after giving the direction that the Land Board will no.t pursue the pro ceedings in respect of those lands until the matter was finally decided in the pending proceedings.
So also, the High Court left the question regarding the ownership of the lands which had been conveyed by the settlement deed of 1957, for investigation and decision by the Land Board.
The High Court however proceeded to examine the valid ity of certain transfers of lands between September 15, 1963 and January 1, 1970 with reference to the relevant provisions of the Act and held as follows : "Broadly stated;, the effect of section 84, is to invalidate transfers effected by a person owning or holding land in excess of the ceiling area, after the date of publication of the Land Reforms Bill (15 9 1963).
That being the object of the section, in order to determine whether the transfer was in excess of the ceiling area, what is material is the law relating to ceiling area on the date of the transfer, and not the law regarding celling area on the date of the acquisition or any date subsequent to the transfer.
" It therefore held that there was no justification for treating the alienations effected after Septem ber 15, 1963 and before January 1, 1970 as having been invalidated by reason of the subsequent amend ments in the law, when they were lawful and valid under the "law relating to ceiling area at the time when they were made.
" The High Court also examined the questions relating to the grant of compensa tion and improvements, but they do not arise for consideration before us.
276 The only question which has been pressed for our consid eration by the Advocate General, on behalf of the appel lants, is that relating to the validity of the transfers of Kayal lands between September 15, 1963 and January 1, 1970.
The writ petitioners in the High Court urged that they were exempt under section 81 (1 )(1) of the Act and could not be held to be invalid with effect from January 1, 1970 because of the subsequent amendment to the Act, and included in their ceiling area.
The term "ceiling area" has been defined in section 2(3) of the Act to mean "the extent of land specified in section 82 as the ceiling area", and there is no controversy about its extent or content.
Section 83 of the Act prohibits the holding of lands in excess of the ceiling area with effect from January 1, 1970.
which had been notified by the govern ment in the gazette as the date from which the prohibition was to be effective.
Section 84 declares certain voluntary transfers to be null and void.
The section as it stood before the amendments road as follows.
Section 84.
Certain voluntary transfers to be null and void.
"Notwithstanding anything con tained in any law for the time being in force, all voluntary transfers effected after the date of publication of the Kerala Land Reforms Bill, 1963, in the Gazette, otherwise than (i) by way of partition; or (ii) on account of natural love and affection; or (iii) in favour of a person who was a tenant of the holding before the 27th July, 1960, and contin ued to be so till the date of transfer: or (iv) in favour of a religious, charitable or educational institution of a public nature solely for the purposes of the institution, by a family or any member thereof or by an adult unmarried person owning or holding land in excess of the ceiling area, shall be deemed to be trans fers calculated to defeat the provisions of this Act and shall be invalid :" There is a proviso to the section with which we are not concerned.
The validity of the transfers had therefore to be examined with reference to September 15, 1963 which was the date of publication of the Kerala Land Reforms Bill, 1963, in the gazette.
The section was amended by Act 35 of 1969 by which the existing section was renumbered as sub section (1) and a sub section was added as subsection (2) which dealt with voluntary transfers effected by any person "other than" a family or any member thereof or by an adult unmar ried person owning or holding land in excess of the ceiling area.
The amendment could not therefore be said to have any bearing on the present controversy.
The section was however again amended by section 15 of Act 17 of 1972.
It, inter alia, omitted clause (ii) of 277 sub section (1) and provided that the omission shah be deemed to have been made with effect from the 16th day of August, 1968.
This had the effect of taking away the excep tion in favour of voluntary transfers on account of natural love and affection.
But it is not the case of any one before us that there was any such transfer in respect of Civil Appeals Nos.
907 to 909, so that amendment also could not be said to have any material bearing on the controversy relating to these appeals.
The fact therefore remains that by virtue of section 84 of the Act, all voluntary transfers of land effected after September 15, 1963 (date of publication of the Kerala Land Reforms Bill, 1963 in the gazette) were invalid as they were to be deemed to be transfers calculated to defeat the provi sions of the Act.
So even if a transfer was found to have been made after September 15, 1963 but before January 1, 1970 (date notified under section 83 prohibiting the owning or holding or to possessing under a mortgage lands in the aggregate in excess of the ceiling area) the ceiling area for purposes 'of section 83 and bringing about the surrender of the excess land under section 85 had to be determined with reference to the position as on January 1, 1970 as that was the date notified under section 83.
The reason is ,that the prohibition of section 83 applied with reference, to that date and that, in turn, required a surrender of the excess land as on that date.
Section 85 is therefore an important section.
It was amended by Act 35 of of 1971 and Act 17 of 1972, but there was no change in its basic provision that when a person owned or held land in excess of the ceiling area "on the date notified under section 83" namely, January 1, 1970, he had to surrender it in ,accordance with the other provisions of the section.
The crucial date for determining and surrendering the surplus land was therefore January 1, 1970, and not any earlier date, but the validity of any voluntary transfer effected after September 15, 1963 which was the date of publication of the Kerala Land Reforms Bill, 1963, had still to be examined with reference to September 15, 1963 in view of the clear requirement of section 84.
This was the scheme of the Act.
We have made a reference to section 84 which clearly pro vides that all voluntary transfers of land effected after September 15, 1963 shall be deemed to be transfers calculat ed to defeat the provisions of the Act and "shah be void".
It has not been urged that the impugned transfers fell under any of the exceptions provided by section 84.
There can be no doubt that any transfer made after September 15, 1963 and before January 1, 1970 would be invalid unless it could be shown to have been saved by any other provision of the Act.
In this connection section 81 of the Act is important for it prescribes the exemptions to the provisions of Chapter III.
Clause (1) of subsection (1) of section 81 specifically provides that the provisions of the Chapter shall not apply to, "(1) kayal padasakharams of Kuttanad area specified "in Schedule IV, so long as such padasak haramas are used for the cultivation of paddy or such other crops as the Government may, by notifi cation in the Gazette, specify.
" 278 It is not in controversy that the Kayal lands which are the subject matter of these appeals are of the category mentioned in clause (1) of sub section (1) of section 81.
They were therefore exempt from the restriction on ownership pre scribed by the various sections of Chapter III referred to above.
So even though by virtue of section 84 of the Act all voluntary transfers effected after September 15, 1963 (date of publica tion of the Kerala Land Reforms Bill, 1963 in the Gazette) were invalid, the transfers made in re spect of Kayal padasakharams in appeals Nos.
907 909 could not be held to be invalid for the simple reason that they were exempt from the provisions of Chapter III.
That exemption was no doubt withdrawn by section 65 of Act 35 of 1969 which amended the Act, but it is not disputed before us that the section was not brought into force until January 1, 1970.
The voluntary transfers made between Septem ber 15, 1963 and January 1, 1970 were therefore valid, and there is no force in the argument of the Advocate General that the amendment brought about by section 65 of Act 35 of 1969 should be given retrospective effect from April 1, 1964 as sections 82 and 84 of the Act were brought into force from that date.
There is also no force in the other argument of the Advocate General that section 84 had the effect of invalidating the transfers effected after September 15, 1963 for that was the date of publication of the Kerala Land Reforms Bill in the gazette.
The argument overlooks the fact that, as has been mentioned, Kayal lands were exempt from the provisions of Chapter III until as late as January 1, 1970.
In this view of the matter Pritam Singh Chahil vs State of Punjab and others(1) cannot avail the appellants.
The amend ment cannot also be said to be curative or merely declaratory of the previous law.
The facts of Chanan Singh and another vs Jai Kaur,(2) cited by the Advocate General, were quite different inasmuch as in the appeals before us the amendment which was made by section 65 of Act 35 of 1969 was nei ther curative nor merely declaratory.
As has been stated, it, inter alia, omitted, clause (1) of section 81 of the Act which exempted the Kayal padasakharams which are the subject matter of the present controversy from the application of the provisions 'of Chapter III of the Act.
It is well settled that a statute is not to be read retrospec tively except of necessity.
There is no such necessity in the cases before us, for the Legisla ture decided to exempt the .aforesaid Kayal lands from the operation of the restrictions and even though amending Act 35 of 1969 was promulgated 'on December 17, 1969, section 65 thereof, which withdrew the exemption, was not brought into force until January 1, 1970.
Thus there is no force in Appeals Nos. 907, 908 and 909 and they are dismissed.
This leaves Civil Appeals Nos. 1354 and 1355 for consid eration.
The transfers of lands in these cases were admit tedly made during the period January 1, 1970 to November 2, 1972.
As such they were not exempt from the restrictions of the provisions of Chapter (1) ; (2) ; 279 III of the Act.
Section 84 of the Act would be attracted to these transfers, and it is futile to contend that this would not be so because the transfers were affected "on account of natural love and affection" within the meaning of clause (ii) of the exceptions provided by section 84 because the exemption to that effect was taken away by Act 17 of 1972.
Section 15 of that Act specifically stated that clause "shall be, and shall be deemed to have been omitted with effect from the 16th day of August, 1968." Moreover, as the High Court has pointed out, the impugned transfers were in favour of the donor 's grand children by his daughter who was alive, and could not be said to fall within the exempted category because of the other amendment made in section 84 of the Act by section 15 of Act 17 of 1972 with effect from the 16th day of August, 1968 which restricted the exemp tion to gifts made in favour of the donor 's son or daughter or the son of daughter of his predeceased son or daughter.
There is thus no 'force in these two appeals also, and they are dismissed.
In view of the facts and circumstances of the cases, we leave the parties to pay and bear their own costs.
P.B.R. Appeal dismissed.

summary/full:
Section 84 of Kerala Land Reforms Act, 1963 declares that all voluntary transfers of land effected after the publication of the Kerala Land Reforms Bill on September 15, 1963, shall be null and void.
Clause (ii) of this section while provided an exemption in respect of transfers made on account of "natural love and affection" was omitted in 1972 with retrospective effect from August 16, 19 '68.
Section 81(1)(1) exempts kayal padasakharams of Kuttanad area from the restrictions on ownership prescribed.by Chapter III of the Act.
By an amendment of 1969, this exemption was with drawn; but the amending section was not brought into force until January 1, 1970.
There were two sets of petitions before the High Court.
In one set the High Court held that (1) voluntary transfers of kayal lands effected between September 15, 1963 and January 1, 1970, were lawful and valid, and in the other (2) that certain transfers by way of gift were invalid.
In the first set of appeals to this Court the State contended that the 1969 amendment should be given retrospec tive effect from April 1, 1964 i.e., the date on which section 84 was brought into force and in the second set the donees contended that the transfers were saved because they were effected on account of natural love and affection.
Dismissing all the appeals, HELD: (1)(a) Even though by virtue of section 84 all volun tary transfers effected after September 15, 1963 were invalid, transfers made in respect of kayal lands could not be held to be invalid because they were exempt from the provisions of Chapter Iii.
Though that exemption was with drawn in 1969, that amendment was not brought into force until January 1, 1970, Voluntary transfers made between September 15, 1963 and January 1, 1970 were therefore valid.
[278 B C] (b) The 1969 amendment was neither curative nor declara tory of the previous law.
It merely omitted cl.
(1) from section 81.
A statute is not to be read retrospectively except of necessity.
There; is no such necessity in the instant cases, for the legislature decided to exempt kayal lands from the operation of the restrictions, and the 1969 amend ment withdrawing the exemption was not brought into force until January 1, 1970. [278 E F] Pritam Singh Chahil vs State of Punjab and others; , and Channan Singh and another vs Jai Kaur ; held inapplicable.
(2) In the other set of cases the impugned transfers were in favour of the donor 's grand children by his daugh ter, who was alive and were effected between January 1, 1970 and November 2, 1972.
It was held that it was futile to contend that section 84 would not be attracted to the transfers on the ground that they were effected on account of natural love and affection within the meaning of the exemption provided by section 84, because the exemption was taken away by Act 17 of 1972 which specifically stated that, that clause shall be, and shall be deemed to have been omitted with effect from the 16th August, 1968" and they could not be said to fall within the exempted category because of the amendment made in section 84 in 1972 restricting the exemption to gifts made in favour of a donor 's son or daughter or the son of a daughter of his predeceased son or daughter.
[279 A C] 274