judgement:
Criminal Appeal No. 145 A of 1954.
972 Appeal under Article 132(1) of the Constitution of India from the Judgment and Order dated July 23, 1954, of the Madras High Court in Criminal Miscellaneous Petition No. 922 of 1954.
Porus A. Mehta and R. H. Dhebar, for the appellants.
B. Pocker and B. K. B. Naidu, for the respondent.
April 11.
The Judgment of the Court was delivered by IMAM J.
The appellant obtained a certificate from the Madras High Court to the effect that the case involved a substantial question of law as to the interpretation of the Constitution under article 132(1), in consequence of which the present appeal is before us.
The respondent had filed a petition in the High Court under section 491 of the Code of Criminal Procedure praying that directions in the nature of habeas corpus may be issued for his production before That Court to be dealt with according to law and for his release from imprisonment.
The respondent had been arrested on June 1, 1954 in pursuance of a warrant issued on March 10, 1954 by the Collector of Malabar under section 48 of the Madras Revenue Recovery Act (Madras Act 11 of 1864) (hereinafter referred to as the Act).
The circumstances, as stated in the affidavits filed by the Collector and the Income Tax Officer of Kozikhode in the High Court, which led to the respondent 's arrest, were, that he had been assessed to income tax for various assessment years and the total amount of tax remaining outstanding against him, in round figures, was Rs. 70,000.
Some amount was recovered by the Collector in pursuance of a certificate issued by the Income Tax Officer under section 46(2) of the Indian Income Tax Act and bY the Income Tax Officer himself under section 46(5)A of the said Act.
After deducting the amount so realised the arrears of income tax were about Rs. 61,668 and odd for the assessment Years 1943 44, 1945 46 to 1948 49.
Meanwhile the Income Tax Officer had made enquiries into the affairs of the respondent and had discovered that he had sold certain properties of his between November 18, 1947 and March 25, 1948 to 973 the tune of about Rs. 23,100.
Demand notice had been served upon him on November 6, 1947 and the series of transactions of sale started on November 18, 1947.
Out of the said sum of Rs. 23,100, the respondent paid arrears of tax to the extent of Rs. 10,500 only.
Enquiries also revealed that although the respondent had closed his business at Cannanore in August, 1947, he had set up a firm in 1948 at Tellichery carrying on an identical business in the name of V.P. Abdul Azeez & Bros. consisting of his one major and four minor sons.
The respondent had alleged that the capital of this firm was mainly supplied from the sale of jewels belonging to his wife, that is, Abdul Azeez 's mother.
He denied that the above mentioned firm belonged to him.
In the assessment proceedings before the Income Tax Officer concerning the firm V.P. Abdul Azeez & Bros., the source of these jewels was gone into, but it was found that the same had not been proved and it was held that the business of V.P. Abdul Azeez & Bros. belonged to the respondent.
All these facts were communicated to the Collector by the Income Tax Officer who made independent enquiries for himself and had reason to believe that the respondent was wilfully withholding payment of arrears of tax and had been guilty of fraudulent conduct in evading payment of tax.
As a certificate had already been issued to him by the Income Tax Officer under section 46(2) of the Indian Income Tax Act, the Collector proceeded under section 48 of the Act to issue a warrant of arrest against the respondent in consequence of which he was arrested and lodged in Central Jail, Cannanore.
In the High Court, the petition under section 491, Criminal Procedure Code, was heard by Mack and Krishna.
swamy Nayudu JJ.
which was allowed and they ordered that the respondent be set at liberty as his arrest was illegal.
Mack J. thought that section 48 of the Act was ultra vires the Constitution as it offended article 22.
He did not deal at length with the argument that section 48 offended article 21 as he was of the opinion that if that section was ultra vires, then the respondent had not been arrested in accordance with procedure, established by 974 Saw and his arrest and imprisonment had been unlawful.
On the other hand, if section 48 was intra vires the Constitution, then the respondent had been lawfully deprived if his personal liberty.
He was further of the opinion that section 46(2) of the Indian Income Tax Act was ultra vires as it offended article 14 of the Constitution.
Krishnaswami Nayudu J. was of the opinion that s.46(2) of the Indian Income Tax Act read with section 48 of the Act offended article 14 of the Constitution.
He was of the opinion that section 48 of the Act offended article 21 of the Constitution to the extent that it afforded no opportunity to the arrested person to appear before the Collector by himself or through a legal practitioner of his choice and to urge before him any defence open to him and that it did not provide for the production of the arrested person within 24 hours before a magistrate as required by article 22(2).
Relying upon the decision of this Court in A. K. Gopalan vs The State Of Madras (1), he was of the opinion that the contention that the provisions of article 21 had been infringed did not require serious consideration because in so far as there was a law on the statute book on which the Collector had acted that would be sufficient to support the legality of the action taken by the Collector.
On behalf of the appellant, it was contended that neither section 48 of the Act nor section 46(2) of the Indian Income Tax Act was in violation of articles 14, 19, 21 and 22 of the Constitution.
Section 46(2) of the Indian Income Tax Act was a valid piece of legislation and under its provisions the Collector was authorized to recover the arrears of income tax as land revenue on receipt of a certificate from the Income Tax Officer.
On behalf of the respondent it was contended that these sections of the Act and the Indian Income Tax Act did offend articles 14, 19, 21 and 22 of the Constitution.
It was further contended that on a proper interpretation of section 46(2) of the Indian Income Tax Act the authority given to the Collector on receipt of the certificate from the Income Tax Officer was to recover the amount of arrears of Income tax, but there was no authority thereunder in the Collector to arrest (1) ; 975 the defaulting assessee.
Even if the said section could be interpreted to give the power of arrest, arrest could only be made under section 48 of the Act.
A proper reading of section 48 of the Act would indicate that the defaulter should be given an opportunity to be heard in his defence, previous to a warrant of arrest being issued against him, as the same could only issue if the Collector had reason to believe that the defaulter was wilfully withholding the arrears of tax or had been guilty of fraudulent conduct in order to evade payment.
Such a belief could not be entertained by the Collector without first giving the defaulter an opportunity to be heard.
The warrant of arrest issued against the respondent without hearing him in his defence wag invalid and the arrest of the respondent was illegal.
The learned Advocate for the respondent further drew our attention to the fact that in section 48 there was no provision for the release of the defaulter if he paid up the arrears of revenue.
What we have to consider in this appeal, at the outset, is, whether either section 48 of the Act or section 46(2) of the Indian Income Tax Act or both offend articles 14, 19, 21 and 22 of the Constitution.
The decisions of this Court in Gopalan 's case, in The State of Punjab vs
Ajaib Singh (1) and in Purshottam Govindji Halai vs
Shree B. B. Desai, Additional Collector of Bombay(2) are to be borne in mind in deciding this question.
It was held by the majority of the learned Judges in Gopalan 's case that the right "to move freely throughout the territory of India " referred to in article 19 (1) (d) of the Constitution was but one of the many attributes included in the concept of the right to " personal liberty " and when a person is lawfully deprived of his personal liberty without offending article 21, he cannot claim to exercise any of the right$ guaranteed by sub cls.
(a) to (e) and (g) of article 19 (1), for those rights can only be exercised by a freeman.
In that sense, therefore, article 19 (1) (d) has to be read as controlled by the provisions of article 21, and the view that article 19 guarantees the substantive right and article 21 prescribes a procedural protection is incorrect.
(1) ; (2) ; 976 The decision in Gopalan 's case has been followed in this Court in a series of cases and that decision must now be taken as having settled once for all that the personal rights guaranteed by sub cls.
(a) to (e) and (g) Of article 19 (1) are in a way dependent on the provisions of article 21 just as the right guaranteed by sub cl.
(f) of article 19 (1) is subject to article 31.
If the property itself is taken; lawfully under article 31, the right to hold or dispose of it perishes with it and article 19 (1) (f) cannot be invoked.
Likewise, if life or personal liberty is taken away lawfully under article 21 no question of the exercise of fundamental rights under article 19 (1) (a) to (e) and (g) can be raised.
Under article 21 " Procedure established by law " means procedure enacted by a law made by the State, that is to say, the Union Parliament or the Legislatures of the States.
In the appeal before us, the principal question, therefore, is whether the respondent was deprived of his personal liberty in accordance with a procedure established by law, i.e., a valid law.
If the law is valid then he has been lawfully deprived of his personal liberty and, in that situation, he cannot complain of the infraction of any of the fundamental rights mentioned in article 19(1) (a) to (e) or (g).
In Ajaib Singh 's case, a person was taken into custody by the police and sent to the Officer in charge of the nearest camp under section 4 of the Abducted Persons (Recovery and Restoration) Act (Act LXV of 1949) and it was submitted that the said Act contravened the provisions, inter alia, of article 22 of the Constitution.
None of these submissions were found to be valid.
It was held, so far as article 22 is concerned, that the taking into custody was not arrest and detention within the meaning of article 22.
Krishnaswami Nayudu J. in his judgment, attempted to distinguish the decision.
With respect to the learned Judge the principle emerging out of the decision in Ajaib Singh 's case appears to us to be clear enough.
The decision did not attempt to lay down in a precise and meticulous manner the scope and ambit of the fundamental rights or to enumerate exhaustively the cases that come within the protection of article 22.
What was 977 clearly laid down was that the physical restraint put upon an abducted person in the process of recovering and taking that person into custody without any allegation or accusation of any actual or suspected or apprehended commission by that person of any offence of a criminal or quasi criminal nature or of any act prejudicial to the State or the public interest, cannot be regarded as an arrest or detention within the meaning of article 22.
In the present case, the arrest was not in connection with any allegation or accusation of any actual or suspected or apprehended commission of any offence of a criminal or quasi criminal nature.
It was really an arrest for a civil debt in the process or the mode prescribed by law for recovery of arrears of land revenue.
In Purshottam Govindji Halai 's case, this Court held that there was no violation of article 21 of the Constitution where a person had been arrested under section 13 of the Bombay Land Revenue Act 1876 in pursuance of a warrant of arrest issued for recovery of the demand certified under section 46(2) of the Indian Income Tax Act, which did not offend article 14 of the Constitution, inasmuch as such arrest was under a procedure established by law, that is to say, section 13 of the said Act constituted a procedure established by law.
Mr. Pocker, however, attempted to distinguish the case, because this Court was dealing with section 13 of the Bombay Act.
The grounds stated in that case for declaring that section 46(2) of the Indian Income Tax Act was not ultra vires the Constitution, as it did not offend article 14, are equally applicable to the present case and we can find no true principle upon which we can distinguish that case from the present one.
In our opinion, having regard to the previous decisions of this Court referred to above, neither section 48 of the Act nor section 46(2) of the Indian Income Tax Act violates articles 14, 19, 21 and 22 of the Constitution.
We now proceed to consider the interpretation sought to be put by Mr. Pocker on section 46(2) of the Indian Income Tax Act and section 48 of the Act.
He contended that section 46(2) of the Indian Income Tax Act merely authorised the Collector to recover the amount 126 978 of arrears of Income Tax, but it did not give him any authority to arrest the respondent.
He submitted that the act of arrest was not a mode of recovery of the arrears of tax, but it was a punishment for failure to pay.
We are unable to accept this interpretation.
The authority given to the Collector by this section is to recover the arrears of tax as if it were an arrear of land revenue.
The preamble of the Act clearly states that the laws relating to the collection of the public revenue should be consolidated and simplified and section 5 provides for the manner in which the arrears of revenue may be recovered.
It reads, " Whenever revenue may be in arrear, it shall be lawful for the Collector, or other officer empowered by the Collector in that behalf, to proceed to recover the arrear, together with interest and costs of process, by the sale of the defaulter 's movable and immovable property, or by execution against the person of the defaulter in manner hereinafter provided." This section clearly sets out the mode of recovery of arrears of revenue, that is to say, either by the sale of the movable or immovable property of the defaulter, or by execution against his person in the manner provided by the Act.
Section 48 provides that when arrears of revenue cannot be liquidated by the sale of the property of the defaulter then the Collector, if he has reason to believe that the defaulter is wilfully withholding payment of the arrears or has been guilty of fraudulent conduct in order to evade payment of tax, can lawfully cause the arrest and imprisonment of the defaulter.
This section read with section 5, makes it abundantly clear that the arrest of the defaulter is one of the modes, by which the arrears of revenue can be recovered, to be resorted to if the said arrears cannot be liquidated by the sale of the defaulter 's property.
There is not a suggestion in the entire section that the arrest is by way of punishment for mere default.
Before the Collector can proceed to arrest the defaulter, not merely must the condition be satisfied that the arrears cannot be liquidated by the sale of the property of the defaulter but the Collector shall have reason to believe that the defaulter is wilfully withholding payment, or has been guilty of fraudulent conduct in order to evade 979 payment.
When dues in the shape of money are to be realised by the procees of law and not by voluntary payment, the element of coercion in varying degrees must necessarily be found at all stages in the mode of recovery of the money due.
The coercive element, perhaps in its severest form, is the act of arrest in order to make the defaulter pay his dues.
When the Collector has reason to believe that withholding of payment is wilful, or that the defaulter has been guilty of fraudulent conduct in order to evade payment, obviously, it is on the supposition that the defaulter can make the payment, but is wilfully withholding it, or is fraudulently evading payment.
In the Act there are several sections (e.g. sections 16, 18 and 21) which prescribe, in unambiguous language, punishment to be inflicted for certain acts done.
It is clear, therefore, that where the Act intends to impose a punishment or to create an offence, it employs a language entirely different to that to be found in section 48.
We are of the opinion, therefore, that where an arrest is made under section 48 after complying with its pro visions, the arrest is not for any offence committed or a punishment for defaulting in any payment.
The mode of arrest is no more than a mode for recovery of the amount due.
There is nothing in section 48 of the Act which requires the Collector to give the defaulter an opportunity to be heard before arresting him.
It is true that the Collector must have reason to believe that the defaulter is wilfully withholding payment or has been guilty of fraudulent conduct in order to evade payment.
The Collector, therefore, must have some material upon which he bases his belief a belief which must be rational belief and a court may look into that material in appropriate cases in order to find out if the conditions laid down in the section have been fulfilled or not.
From the affidavits filed in the High Court by the Collector and the Income Tax Officer it is quite clear that there was material upon which the Collector could base his belief that the respondent was wilfully withholding payment of the arrears of tax and had been guilty of fraudulent conduct in order to 980 evade payment.
The Collector was, therefore, justified in arresting the respondent.
As pointed out by Mr. Pocker, section 48 of the Act does not in terms provide for the release of the defaulter if he pays up the arrears, but it is to be remembered that in addition to the powers under section 48 of the Act, the Collector has, under the proviso to section 46(2) of the Indian Income Tax Act, similar powers to that which a Civil Court has for recovery of an amount due under a decree.
It was held in Purshottam Govindji Halai 's case that the proviso is not an alternative remedy open to the Collector but only confers additional powers on the Collector for the better and more effective application of the only mode of recovery authorized by sub see.
(2) of section 46 of the Indian Income Tax Act.
Under section 58 of the Civil Procedure Code a Civil Court must release the judgment debtor if the amount due is paid.
Accordingly, the Collector has the power to release the defaulter if the amount due is paid and there is no substance in the submission of the learned Advocate.
Moreover, one of the conditions precedent to action under section 48 is the existence of arrears of revenue.
On payment of the arrears, that condition no longer exists and the debtor must clearly be entitled to release and freedom from arrest.
It was urged that the respondent was a man of about 70 years at the time of his arrest and a 'Person suffering from serious ill health.
Indeed, it is said, he is suffering from paralysis and that he should not be sent back to jail custody.
We cannot in the present proceedings make such an order.
The respondent may, if he is taken into custody again, approach the Collector for his release who could do so, in the circumstances set out in section 59 of the Code of Civil Procedure, in the exercise of his powers under the proviso to section 46(2) of the Indian Income Tax Act.
The appeal is accordingly allowed with costs and the judgment of the High Court is set aside.
It will be open to the Income Tax Officer of Kozikhode and the Collector of Malabar to take such steps against the 'respondent according to law as they may be advised.
Appeal allowed.

summary/full:
The Income Tax Officer forwarded a certificate under section 46(2) of the Indian Income Tax Act to the Collector for recovering the arrears of Income Tax from the assesses as if they were arrears of land revenue.
The Collector proceeded under section 48, Madras Revenue 971 Recovery Act, and had the assessee arrested and confined in jail.
Upon a petition for a writ of habeas corpus the High Court ordered the release of the assessee holding that section 48 of the Madras Revenue Recovery Act and section 46(2) Of the Indian Income Tax Act were ultra vires.
The Collector appealed.
Held, that section 48 Of the Madras Revenue Recovery Act, and section 46(2) of the Indian Income Tax Act were not ultra vires and neither of them violated articles 14,19, 21 and 22 of the Constitution.
Where the personal liberty of a person is lawfully taken away under article 21, i.e., in accordance with a procedure established by a valid law, no question of the exercise of fundamental rights under article 19(1)(a) to (e) and (g) can be raised.
A.K. Gopalan vs The State of Madras, ; , followed.
An arrest for a civil debt in the process of or in the mode prescribed by law for recovery of arrears of land revenue does not come within the protection of article 22.
State of Punjab vs Ajaib Singh ; , followed.
Section 46(2) of the Indian Income Tax Act does not offend article 14 and there is no violation of article 21 where a person is arrested under section 48, Madras Revenue Recovery Act, in pursuance of a warrant of arrest issued for the recovery of the demand certified under section 46(2) of the Indian Income Tax Act.
Purshottam Govindji Halai vs Shri B. M. Desai, Additional Collector of Bombay, ; , followed.
Section 46(2) of the Indian Income Tax Act gives authority to the Collector to recover arrears of tax as if it were an arrear of land revenue.
Section 48 of the Madras Revenue Recovery Act read with section 5 make it clear that the arrest of the defaulter is one of the modes by which the arrears of land revenue can be recovered, to be resorted to if the said arrears cannot be liquidated by the sale of the defaulter 's property.
Such an arrest is not for any offence committed or a punishment for defaulting in any payment.
Section 48 of the Madras Revenue Recovery Act does not require the Collector to give the defaulter an opportunity to be heard before arresting him.
But the Collector must have reason to believe that the defaulter is wilfully withholding payment or has been guilty of fraudulent conduct in order to evade payment.
Such belief must be based upon some material, which a Court may look into in appropriate cases, to find out if the conditions laid down in the section have been fulfilled.
The Collector has also the power to release the defaulter if the amount due is paid.


judgement:
Civil Appeal No. 3796 of 1984.
Appeal by Special leave from the Judgment and Order dated the 24th & 27th of September, 1982 of the Karnataka High Court in W.P. No. 1089 of 1981.
V.C. Mahajan, R.N. Foddar & N.S. Das Behi, for the Appellant.
A.K. Goel for the Respondent.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The question for consideration in this appeal by Special Leave is whether the Government of a State can be treated as the 'appropriate Government ' under section 2(a) of the (hereinafter referred to as 'the Act ') in relation to any industrial dispute concerning the office of the Regional Provident Fund organisation established by the Central Government for that State under the (hereinafter referred to as 'the Provident Funds Act ').
The facts of the case are these: The Government of Karnataka made a reference under section 10 of the Act referring a certain dispute between the Regional Provident Fund organisation established under the Provident Funds Act for the State of Karnataka and its employees to the Additional Industrial Tribunal, Bangalore and the said reference came to be registered as A.I.D. 3 of 1979 on the file of the Tribunal.
Before the Tribunal the Regional Provident Fund organisation raised among other pleas two preliminary objections to the reference viz. that the activity carried on by the management was not an industry and that the State Government was not the appropriate Government under the Act in relation to the dispute between it and its employees.
The Tribunal took up for consideration the two issues arising out of the above two objections first and after hearing the management and the workmen negatived both the contentions of the management.
819 It held that the business carried on by the Regional Provident Fund Organisation was an industry and that the State Government was the appropriate Government under the Act.
Aggrieved by the above findings of the Tribunal the management filed a writ petition under Article 226 of the Constitution before the High Court of Karnataka questioning the correctness of the said findings.
Before the learned Single Judge who heard the writ petition the management did not, however, press its case as regards the finding that the Provident Fund organisation was an industry.
The only contention urged by it was that the State Government being not the appropriate Government under the Act in so far as the dispute was concerned it could not refer the dispute under section 10 of the Act.
The learned Single Judge accepting the said contention of the management quashed the reference.
Aggrieved by the decision of the learned Single Judge, the workmen filed an appeal before the Division Bench of the High Court.
The Division Bench reversed the decision of the learned Single Judge and held that the State Government was the appropriate Government for purposes of the dispute in question.
The management has filed this appeal after observing the leave of this Court under Article 136 of the Constitution against the judgment of the Division Bench.
Under section 10 the Act, where the appropriate Government is of opinion that any industrial dispute exists or apprehended, it may at any time by order in writing refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule to the Act, to Tribunal for adjudication.
Section 2(a) of the Act defines the expression 'appropriate Government ' as in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government or by the industries specified in clause (i) of section 2(a) of the Act, the Central Government and in relation to any other industrial dispute, the State Government.
It may be stated here that the organisation under the Provident Funds Act was not one of the industries specified in section 2(a)(i) of the Act when the reference was made in this case.
The contention of the management is that the industry in question falls under section 2(a)(i) of the Act as it is an industry carried on under the authority of the Central Government and hence the Central Government alone can act as the appropriate Government in relation to a dispute concerning it.
820 Entry 24 of the concurrent List in the Seventh Schedule to the Constitution specifically refers to the subject 'employees ' provident funds '.
The Central Government could have, if it intended to do so, started a provident funds scheme for the benefit of the workers in exercise of its executive power.
Before any such action was taken the subject of legislation for instituting compulsorily contributory funds in industrial undertakings was discussed several times at tripartite meetings in which representatives of the Central and State Governments and of employers and workers took part.
Ultimately it was decided that the Central Government should initiate appropriate legislation in Parliament for the said purpose.
Accordingly an ordinance was issued in 1951 incorporating the decisions arrived at such meetings.
Later on in 1952 the Provident Funds Act came to be passed replacing the ordinance.
The Provident Funds Act contemplates the administration of the Scheme framed under section 5, the Family Pension Scheme framed under section 6A and the Employees ' Deposit linked Insurance Scheme, under section 6C(1) of that Act.
The Provident Funds Act applies to the whole of India except the State of Jammu and Kashmir.
Under section 5A of the Provident Funds Act the Central Board of Trustees (hereinafter called 'the Central Board ') is constituted by the Central Government to administer, subject to the provisions of section 6A and section 6C, the fund vested in it in such manner as may be specified in the Scheme and to perform such other functions as it may be required to perform by or under the provisions of the Scheme, the Family Pension Scheme and the Insurance Scheme.
Under section 5B of the Provident Funds Act the Central Government may, after consultation with the Government of any State, by notification in the Official Gazette, constitute for that State a Board of Trustees which is for purpose of brevity referred to as the State Board in such manner as may be provided for in the Scheme.
The crucial provision in section 5B which, if we may say so with respect, has missed the attention of the Division Bench of the High Court is sub section (2) thereof.
It says that a State Board shall exercise such powers and perform such duties as the Central Government may assign to it from time to time.
Under Paragraph 4 of the Scheme framed under the Provident Funds Act, it is provided that until such time as a State Board is constituted for a State the Central Government may set up a Regional Committee for the State which will function under the Central Board.
There are three funds which are created by the Provident Funds Act.
They are (i) The Fund i.e. the Provident Fund 821 established under the Scheme, (ii) the Family Pension Fund established under the Family Pension Scheme and (iii) the Insurance Fund established under the Insurance Scheme.
They are not confined to ans particular State or Region.
Each of them is a fund into which the amount collected under the respective Schemes is credited irrespective of the State or the Region where they are collected.
Under Paragraph 54 of the Scheme all expenses relating to the administration of the fund including those incurred on Regional Committees have to be met from the Fund.
For purposes of the administration of the provident Funds Act, the appropriate Government in relation to an establishment belonging to or under the control of the Central Government or in relation to an establishment connected with a railway company, a major port, a mine or an oil field or a controlled industry or in relation to an establishment having department or branches in more than one State is the Central Government and in relation to any other establishment, the State Government under section 2(a) of the Provident Funds Act.
We are not concerned with this definition in this case as the question to be decided arises under the Act.
The Provident Funds Act and the Scheme clearly show that the Central Government has the final voice in many matters including appointments to various offices referred to therein.
It is not necessary to refer to then in detail here.
What has got to be determined in this case is whether the activity carried on under the Provident Funds Act is being carried on by or under the authority of the Central Government as provided in section 2(a) of the Act or not in order to decide whether the Central Government is the appropriate authority under the Act or not.
Section 2(a) of the Act came up for consideration by this Court in Heavy Engineering Mazdoor Union vs State of Bihar & Ors.
( ') The Court observed in that case that there being nothing to the contrary, the word 'authority ' in section 2(a) of the Act must be construed according to its ordinary meaning and therefore must mean a legal power given by one person to another to do an act.
The words 'under the authority of ' were construed by this Court in that case as meaning pursuant to the authority, such as where an agent or a servant acts under or pursuant to the authority of his principal or master.
Applying this test, the Court held that a manufacturing industry carried on by a company registered under 822 the authority of the Central Government even though the entire capital of the company had been contributed by the Central Government and under Articles of Association of the company the Central Government could exercise control over the affairs of the company.
The Court, however, proceeded to observe that the question whether a corporation is an agent of the State would depend upon the facts of each case.
It referred to the decision in Graham vs Public Works Commissioner(1) and said that where a statute setting up a Corporation so provided, such a Corporation could be easily identified as the agent of the State and that it was possible for the Crown with the consent of Parliament to appoint or establish certain officials or bodies who were to be treated as agents of the Crown even though they had the power of contracting as principals.
Merely because the officials of Government or certain bodies constituted by the Government for purposes of administration are given the garb of a statutory corporation they do not cease to be what they truly are.
At this stage it is appropriate to refer to certain observations made by Mathew, J. in Sukhdev Singh & Ors.
vs Bhagatram Sardar Singh Raghuvanshi & Anr.(2) on the true characteristics of public corporations established under a statute.
The learned Judge observed at page 646 thus: "A public corporation is a legal entity established normally by Parliament and always under legal authority, usually in the form of a special statute, charged with the duty of carrying out specified governmental functions in the national interest, those functions being confined to a comparatively restricted field, and subjected to control by the executive, while the corporation remains juristically an independent entity not directly responsible to parliament.
A public corporation is not generally a multi purpose authority but a functional organisation created for a specific purpose.
It has generally no shares or shareholders.
Its responsibility generally is to Government.
Its administration is in the hands of a Board appointed by the competent Minister.
The employees of public corporation are not civil servants.
It is in fact, 823 likely that in due course a special type of training for specialized form of public service will be developed and the status of the personnel of public corporation may more and more closely approximate to that of civil service without forming part of it.
In so far as public corporations fulfil public tasks on behalf government, they are public authorities and as such subject to control by government." In the instant case, it is to be noted that the activity carried on by the Central Board or the State Boards under the Provident Funds Act is not similar to the activity carried on by any private trade or manufacturing business like the one involved in the case of the Heavy Engineering Corporation 's case (supra).
The activity is one traceable to Article 43 of the Constitution which requires the State to endeavour to secure by suitable legislation or economic organisation or in any other way to all workers, agricultural or industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities.
It is a part of the programme of every welfare State which our country is.
Institutions engaged in matters of such high public interest or performing such high public functions as observed by Mathew J. in Sukhdev Singh 's case (supra) by virtue of their very nature performed governmental functions.
They are truly the agents of the Government and they function under the authority of the Government as provided in the statute because the Central Government could have, for the purpose of introducing the scheme of compulsory contribution to the provident fund, set up an organisation or a department in absence of the corporate bodies evisaged in the Provident Funds Act.
The Division Bench of the High Court was in error in observating that an examination of the organisation showed "that the activities of the Provident Fund" organisation are not governmental in character as they are essentially part of the activities of various industries to which the Provident Funds Act applies.
' We have no doubt that the business of the Provident Funds organisation is governmental in character and does not pertain to industry to which the Provident Funds Act applies.
The management and workmen of industries to which the Provident Funds Act applies contribute to the funds established under that Act.
The business of the statutory bodies functioning under that Act is not the business of industries whose managements and workmen 824 make contributions to the said funds.
In addition to the above feature, the provisions of section 5B (2) of the Provident Funds Act which reads: "A State Board shall exercise such powers and perform such duties as the Central Government may assign to it from time to time" clearly envisage that the State Board is an agent of the Central Government.
In the absence of the State Board, the Regional Committee constituted under Paragraph 4 of the Scheme is required to function under the control of the Central Board.
The Regional Provident Fund Commissioner who is appointed by the Central Government is also under the control of the Central Board and the Central Government.
Having regard to the various provisions of the Provisions Funds Act and the nature of the business carried on by the Central Board, the State Board, the Regional Committee and the Regional Provident Fund Commissioner, we are of the view that the Division Bench of the High Court was not right in holding that the State Government was the appropriate Govt.
under section 2(a) of the Act in the matter of industrial disputes arising between the management and the workmen of the Regional Provident Fund organisation.
It has to be mentioned here that even the learned counsel for the workmen fairly stated that the Central Government was appropriate Government under the Act in so far as the dispute in question is concerned He, however, submitted that the Central Government may now be directed to refer the dispute pending before the Tribunal at Bangalore to an Industrial Tribunal quickly as the case has been pending for nearly 5 years.
We have no doubt that the Central Government will immediately consider the above question and take appropriate action.
In the result the order of the Division Bench of the High Court is set aside and the order of the learned Single Judge is restored.
The reference made by the State Government is quashed.
The appeal is accordingly allowed.
No costs.
H.S.K. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The Government of Karnataka State made a reference under section 10 of the (hereinafter referred to as 'the Act ') referring Certain dispute between the Regional Provident Fund Organisation established by the Central Government for that State under the Employees ' Provident Fund & Miscellaneous Provisions Act, 1952 and its employees to the Industrial Tribunal.
The Regional Provident Fund Organisation raised two preliminary objections viz. that the activity carried on by the management was not an industry and that the State Government was not the appropriate Government under the Act in relation to the dispute between it and its employees.
The Tribunal negatived both the contentions.
The management filed a writ petition under Article 226 of the Constitution before the High Court.
The only contention urged by the management was that the State Government being not the appropriate Government under the Act is for as the dispute was concerned, it could not refer the dispute under section 10 of the Act.
A single Judge accepted the contention.
In appeal filed by the workmen.
a Division Bench of the High Court held that the State Government was the appropriate Government for purposes of the dispute in question.
Hence this appeal by the management by special leave against the judgment of the Division Bench.
The management contended that the industry in question fell under section 2 (a) (i) of the Act as it was an industry carried on under the authority of the Central Government and hence the Central Government alone could act as the appropriate Government in relation to the dispute concerned.
817 Allowing the Appeal, ^ HELD: In order to decide whether the Central Government is the appropriate Government under the Act or not in this case it has got to be determined whether the activity carried on under the Provident Funds Act is being carried on by or under the authority of the Central Government as provided in section 2 (a) of the Act.
The word authority in section 2(a) of the Act must be construed according to its ordinary meaning and therefore must mean a legal power given by one person to another to do an act.
The words 'under the authority of ' means pursuant to the authority, such as whether the agent or the servant act under or pursuant to the authority of his principal or master.[821F H] Heavy Engineering Mazdoor Union vs The State of Bihar & Ors., , Graham vs Public Works Commissioner, and Sukhdev Singh & Ors.
vs Bhagatram Sardar Singh Raghuvanshi & Anr., [1975] 3 S.C.R. 619, referred to.
In the instant case, the activity carried on by the Central Board or the State Boards under the Provident Funds Act is one traceable to Article 43 of the constitution which requires the State to endeavour to secure by suitable legislation or economic organisation or in any other way to all workers, agricultural or industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and cultural opportunities.
It is a part of the programme of every welfare State which our country is.
Institutions engaged in matters of such high public interest or performing such high public functions by virtue of their very nature performed governmental functions.
They are truly the agents of the Government and they function under the authority of the Government as provided in the statute because the Central Government could have for the purpose of introducing the scheme of compulsory contribution to the Provident fund set up an organisation or a department in the absence of the corporate bodies envisaged in the Provident Funds Act.
[823C F] The provisions of section 5B (2) of the Provident Funds Act which reads: "A State Board shall exercise such powers and perform such duties as the Central Government may assign to it from time to time" clearly envisage that the State Board is an agent of the Central Government.
In the absence of the State Board, the Regional Committee constitute under Paragraph 4 of the Scheme is required to function under the control of the Central Board.
The Regional Provident Fund Commissioner who is appointed by the Central Government is also under the control of the Central Board and the Central Government.
[824B C] Having regard to the various of the Provident Funds Act and the nature of the business carried on by the Central Board, the State Board, the Regional Committee and the Regional Provident Fund Commissioner, this Court is of the view that the Division Bench of the High Court was not right in holding that the State Government was the appropriate Government under 818 section 2 (a) of the Act in the matter of industrial disputes arising between the management and the workmen of the Regional Provident Fund organisation.
[854D E]


judgement:
Civil Appeal No. 2629 of 1977.
Appeal by Special leave from the Judgment and Order dated the 933 2nd February, 1976 of the Andhra Pradesh High Court in Writ Appeal No. 628 of 1974.
A. Subba Rao for the Appellant.
U.R. Lalit, and G. Narasimhulu for the Respondent.
The Judgment of the Court was delivered by MADON, J.
The Appellant joined the service of the Former Indian State of Hyderabad prior to the coming into force of the Constitution of India.
On the coming into force of the Constitution of India on January 26, 1950, the former Indian State of Hyderabad became a part of the territory of India as a Part State and the Appellant continued in the service of that State.
He retired from service on January 21, 1956, as Secretary to the Government of Hyderabad, Legal Department.
The Appellant claimed that he was entitled to be paid the salary of a High Court Judge from October 1, 1947, being the date from which the recommendations of a Pay and Service Commission which had been set up had been implemented up to the date of his retirement from service.
The Appellant also claimed that he was entitled to receive a pension of Rs. 1,000 a month in the Government of India currency being the maximum pension admissible under the rules in that behalf.
Both the aforesaid claims were negatived by the Government in spite of several representations made by the Appellant.
Ultimately, in order to enforce the aforesaid two claims, the Appellant filed in the High Court of Andhra Pradesh a writ petition under Article 226 of the Constitution of India, being Writ Petition No. 1613 of 1972, against the State of Andhra Pradesh which was the principal successor State to the erstwhile State of Hyderabad.
A learned Single Judge of that High Court rejected the claim made by the Appellant with respect to salary on the ground that the said claim had been negatived by the Government as far back as 1955 and merely by making representations to the Government he could not keep that claim alive.
So far as the amount of pension payable to the Appellant was concerned, the defence of the Respondent was that the amount of maximum pension payable under the rules in that behalf was not Rs. 1,000 a month in the Government of India currency but was O.S. Rs. 1,000 a month, that is, Osmania Sikka Rs. 1,000 Osmania Sikka being the currency of the former Indian State of Hyderabad) and, therefore, the Appellant was entitled to receive a pension of 934 only Rs. 857.15 per month being the equivalent in the Government cf India currency of O.S. Rs. 1,000.
In order to understand this defence taken by the Respondent, it is necessary to mention that at the date when the Appellant joined service, his terms and conditions of service were governed by the Hyderabad Civil Service Regulations.
Under Regulation 6 of the said Regulations, a Government servant 's claim to pension was to be regulated by the rules in force at the time when the Government servant retired from the service of the Government.
Under clause (b) of Regulation 313, the maximum pension ordinarily admissible for superior service to which the Appellant belonged was to be O.S. Rs. 1,000 a month.
After the former Indian State of Hyderabad became a part of the territory of India, Hyderabad currency was demonetized with effect from April 1, 1953, and by section 2 of the Hyderabad Currency Demonetization (Consequential and Miscellaneous Provisions) Act, 1953 ( Hyderabad Act No. 1 of 1953), references express or implied inter alia in any Regulation in force in the Hyderabad State immediately before the commencement of the said Act were to be construed as references to the equivalent amount in the Government of India currency according to the standard rate of exchange, namely, 7 O.S. rupees for 6 I.G. rupees, (Indian Government rupees).
The Hyderabad Civil Service Regulations were replaced with effect from October 1, 1954, by the Hyderabad Civil Services Rules which were made by the Rajpramukh of the erstwhile State of Hyderabad in exercise of the power conferred by the proviso to Article 309 of the Constitution of India.
Under Rule 4 of the said Rules also a Government servant 's claim to pension was to be regulated by the Rules in force at the time when he retired from the service of the Government.
Under clause (b) of Rule 299 (now clause (b) of sub rule (1) of Rule 299) the maximum pension ordinarily admissible for superior service was to be Rs. 1,000 a month.
The contention of the Respondent was that the expression 'Rs. 1,000 a month ' in the said clause (b) really meant O.S. Rs. 1,000 a month and that the qualifying letters O.S. were omitted by an inadvertent printing error.
By a memorandum, being Memorandum No. 27439/540/Pen.
I/69 dated April 28,1969, the Assistant Secretary to the Government of Andhra Pradesh, Finance Department, issued an erratum purporting to correct the sum of Rs. 1,000 mentioned in the said clause (b) of Rule 299 to O.S. Rs. 1,000.
In Writ Petition No. 3318 of 1969 Dault Rai and 935 Others vs State of Andhra Pradesh a learned Single Judge of the said High Court held that there was no error in mentioning Rs. 1,000 and that what the said erratum purported to do in fact was to amend the said clause (b) of Rule 299 which could not be done without the approval of the Governor of Andhra Pradesh.
The said judgment of the learned Single Judge was affirmed by a Division Bench of the said High Court in Writ Appeal No. 568 of 1970 State of Andhra Pradesh vs Daulat Rai and Others.
The said Division Bench also rejected an application made by the State for a certificate to appeal to this Court and a petition for special leave to appeal against the said judgment was dismissed by this Court.
In view of this position, the Respondent 's contention that the Appellant was entitled only to a pension of Rs. 857.15 per month was bound to fail.
Hoverer, during the pendency of the Appellant 's writ petition, by a Government Notification dated February 3, 1971, the said clause (b) of sub rule (1) of Rule 299, as it had then become, was amended with retrospective effect from October 1, 1954.
By this amendment the expression Rs. 1000 a month ' in the said clause (b) was substituted by the expression 'Rs. 857.15 a month '.
This amendment was made in exercise of the powers conferred by the proviso to Article 309 read with Article 313 of the Constitution of India.
The learned Single Judge who heard the Appellant 's writ petition held that in view of the Judgment of this Court in Deokinandan Prasad vs State of Bihar and Others the right to receive pension was property and was a fundamental right guaranteed both by Article 19(1)(f) and Article 31 (1) of the Constitution of India and that it had accrued to the Appellant on the date when he retired and could not be affected by a rule made subsequently under the proviso to Article 309.
The learned Single Judge, there.
fore, allowed the said writ petition to the extent that the Appellant was entitled to get his future pension at the rate of Rs. 1,000 a month in the Government of India currency from the date of the filing of the said writ petition and arrears of pension at the same rate for a period of three years before the filing of the said writ petition, namely April 13, 1972.
The learned Single Judge made no order as to the costs of the said writ petition.
The Respondent filed a Letters Patent Appeal against the judgment of the learned Single Judge, being Writ Appeal No. 628 936 of 1974.
The Appellant did not file any cross appeal.
The Division Bench Which heard the said appeal held that in Deokinandan Prasad 's case this Court did not hold that a pensioner was entitled to any pension that he demanded but all that was done in the case was to direct the State to consider properly the claim of the pensioner for payment of pension according to law.
It further relied upon its decision given in Writ Appeal No. 835 of 1974 State of Andhra Pradesh vs Ahmed Hussain Khan heard along with Writ Appeal No. 920 of 1974 State of Andhra Pradesh vs section Gopalan In which the same Bench had held that the amendment made in the said clause (b) of Rule 299 (1) by the said Notification dated February 3, 1971, was valid.
The Division Bench accordingly allowed the said appeal and dismissed the Appellant 's said writ petition with no order as to the costs.
lt is against this judgment and order of the Division Bench of the Andhra Pradesh High Court that the present Appeal has been filed by the Appellant by Special Leave granted by this Court.
We find that the reliance placed by the Division Bench upon its earlier decision in the two writ appeals referred to above was misconceived.
Those two appeals arose out of separate writ petitions filed by two Government servants who had joined the service of the former Indian State of Hyderabad and had retired after the States Reorganization Act, 1956 (Act XXXVII of 1956), had come into force.
The contentions of those two Government servants was that the conditions of service applicable immediately before the appointed day, namely, November, 1, 1956, to per sons referred to in sub section (1) or sub section (2) of section 115 of the said Act could not be varied to their disadvantage except with the previous approval of the Central Government by reason of the proviso to sub section (7) of the said section 115, and that as the approval of the Central Government had not been obtained to the said Notification, the said amendment was invalid.
This contention was upheld by a learned Single Judge of the High Court.
The Division Bench had, however, held in the above two appeals that a letter dated April 28, 1973, from the Joint Secretary to the Government of India, Cabinet Secretariat, Department of Personnel and A.R., amounted to the previous approval of the Central Government within the meaning of the proviso to sub section (7) of the said section 115.
The said two Government servants thereupon filed appeals in this Court by special leave granted 937 by it, being Civil Appeal No. 2627 of 1977 Ahmed Hussain than vs State of Andhra Pradesh and Civil Appeal No. 2628 of 1977 section Gopalan vs State of Andhra Pradesh.
This Court allowed those two Appeals and reversed the judgment of the Division Bench holding that the said letter dated April 28, 1973, did not amount to a previous approval granted by the Central Government to the amendment made by the said Notification dated February 3, 1971, to the said clause (b) of Rule 299(1) and that therefore, the said Notification was invalid and inoperative so far as it concerned persons referred to in sub sections (1) and (2) of the section 115.
Sub section (1) of section 115 refers to every person who immediately before the appointed day, namely, November 1, 1956, was serving in connection with the affairs of the Union under the administrative control of the Lieutenant Governor or Chief Commissioner in any of the then existing States of Ajmer Bhopal, Coorg, Kutch and Vindhya Pradesh, or was serving in connection with the affairs of any of the then existing States of Mysore, Punjab, Patiala and East Punjab States Union and Saurashtra, and was on the appointed day deemed to have been allotted to serve in connection with the affairs of the successor State to that existing State.
Sub section (2) refers to every person who immediately before the appointed day, namely, November, 1 1956, was serving in connection with the affairs of an existing State part of whose territories was transferred to another State by the provisions of Part II of the said Act and who, as from that day provisionally continued to serve in connection with the affairs of the principal successor State to that existing State.
The Appellant in the present Appeal had retired prior to November 1, 1956.
He, therefore, did not fall under either sub section (1) or sub section (2) of the said section 115 and proviso to sub section (7) of that section had no application to him.
The amendment to the Rules, so far as he was concerned, did not, therefore, require any previous approval of the Central Government even though thereby the conditions of his service were being varied to his disadvantage.
That, however, is not the end of the matter, because in spite of this position, the Appellant is entitled to succeed in view of the Judgment of this Court in Deokinandan Prasad 's case which is a decision of a five judge Bench of this Court.
We find that the Division Bench has misunderstood the ratio of that decision.
938 In that case, this Court held that the payment of pension does not depend upon the discretion of the State but is governed by rules made in that behalf and a Government servant coming within such rules is entitled to claim pension.
It was further held that the grant of pension does not depend upon an officer being passed by the authorities to that effect though for the purpose of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the rules.
It was also held in that case that pension is not a bounty payable at the sweet will and pleasure of the Government but is a right vesting in a Government servant and was property under clause (1) of Article 31 of the Constitution of India and the State had no power to withhold the same by a mere executive order and that similarly this right was also property under sub clause (f) of clause (1) of Article 19 of the Constitution of India and was not saved by clause (5) of that Article.
It was further held that this right of the Government servant to receive pension could not be curtailed or taken away by the State by an executive order.
Pension being thus a fundamental right, it could only be taken away or curtailed in the manner provided in the Constitution.
So far as Article 31 (1) is concerned, it may be said that the Appellant was deprived of, his property, by authority of law but this could not be said to have been done for a public purpose nor was any compensation being given to the Appellant for deprivation of his property, namely a sum of Rs. 142.85 being the difference between Rs. 1,000 and Rs. 857.15.
So far as Article 19 (1) (f) is concerned, the fundamental right under that sub clause could be restricted only as provided by clause (S) of Article 19.
That clause has no application to a right to receive pension which is property under sub clause (f) of Article 19 (1) of the Constitution as held in Deokinandan Prasad 's case.
The said amendment could not by any stretch of imagination be classified as a law of the nature mentioned in clause (5) of Article 19.
In Deokinandan Prasad 's case it was expressly held that clause (S) of Article 19 has no application to the right to receive pension.
The fundamental right to receive pension according to the rules in force on the date of his retirement accrued to the Appellant when he retired from service.
By making a retrospective amendment to the said Rule 299 (1) (b) more than 939 fifteen years after that right had accrued to him, what was done was to take away the Appellant 's right to receive pension according A to the rules in force at the date of his retirement or in any event to curtail and abridge that right.
To that extent, the said amendment was void.
The fact that sub clause (f) of clause (1) of Article 19 and Article 31 have been omitted from the Constitution by the Constitution (Forty forth Amendment) Act, 1978, with effect from June 20, 1979, is immaterial because both on the date when the Appellant retired as also on the date when the said Notification was issued, these provisions were part of the Constitution.
In the result, we allow this Appeal, reverse the judgment and set aside the order of the Division Bench of the Andhra Pradesh High Court appealed against and restore the order passed by the learned Single Judge.
We direct the State of Andhra Pradesh to pay to the Appellant the amounts due to him according to the judgment of the learned Single Judge of that High Court within one month from today and to pay to him pension in future at the rate of Rs. 1,000 per month in the Government of India currency.
The Respondent will pay to the Appellant the costs of this Appeal.
N.V.K. Appeal allowed.

summary/full:
The appellant was employed in the service of the former Indian State of Hyderabad prior to the coming into force of the Constitution of India.
On the coming into force of the Constitution of India, the said State became a part of the territory of India as a Part State and the Appellant continued in the service of that State, till he retired from service on January 21, 1956.
The appellant claimed that he was entitled to be paid the salary of a High Court Judge from October 1, 1947 and also claimed that he was entitled to receive a pension of Rs. 1,000 a month in the Government of India currency being the maximum pension admissible under the rules.
Both the aforesaid claims were negatived by the Government.
The Appellant thereupon filed a writ petition in the High Court against the Respondent State of Andhra Pradesh, which was the principal successor State to the erstwhile State, which was contested under Regulation 6 of the Hyderabad Civil Service Regulations which were applicable in the case of the Appellant and that claim to pension was to be regulated by the rules in force at the time when the Government servant retired from the service of the Government.
Under clause (b) of Regulation 313, the maximum pension ordinarily admissible for superior service to which the Appellant belonged was to be Osmania Sikka Rs. 1,000 a month.
The Hyderabad Civil Service Regulations were replaced with effect from October 1, 1954 by the Hyderabad Civil Services Rules and under clause (b) of Rule 299 (which later became clause (b) of sub rule (1) of Rule 299) the maximum pension ordinarily admissible for superior service was to be Rs. 1,000 a month, 931 During the pendency of the writ petition, the Government by a Notification dated February 3,1971 amended clause (b) of sub rule (1) of Rule 299, with retrospective effect from October 1, 1954.
The expression 'Rs. 1,000 a month in the said clause (b) was substituted by the expression 'Rs 857.15 a month".
This amendment was made in exercise of the powers conferred by the proviso to Article 309 read with Article 313 of the Constitution of India.
The Single Judge who heard the Appellant 's writ petition rejected the claim made by the Appellant with respect to salary on the ground that the said claim had been negatived by the Government as far back as 1955 and merely by making representations to the Government he could not keep the said claim alive.
He however held that in view of the judgment of this Court in Deokinandan Prasad vs State of Bihar and Others [1971] Supp.
S.C.R 634 the right to receive pension was property and was a fundamental right and that it had accrued to the Appellant on the date when he retired and could not be affected by a rule made subsequently under the proviso to Article 309, and allowed the writ petition to the extent that the Appellant was entitled to get his future pension at the rate of Rs. 1,000 a month in the Government of India currency from the date of filing of the said writ petition and arrears of pension at the same rate for a period of three years prior to the filing of the said writ petition.
The Respondent State filed a Letters Patent Appeal, and the Division Bench held that this Court in Deokinandan Prasad 's case did not hold that a pensioner was entitled to any pension that he demanded but all that was done in the said case was to direct the State to consider properly the claim of the pensioner for payment of pension according to law, and relying upon its earlier decisions in State of Andhra Pradesh vs Ahmed Hussain Khan and State of Andhra Pradesh vs section Gopalan upholding the validity of the amendment made in clause (b) of Rule 299 (1) by the Notification dated February 3, 1971, allowed the appeal and dismissed the writ petition of the appellant.
Allowing the Appeal to this Court, ^ HELD: The relevance placed by the Division Bench upon its earlier decision in the two writ appeals (Ahmed Hussain Khan and section Gopalan) was misconceived.
The two appeals arose out of separate writ petitions filed by two Government servants who had joined the service of the former Indian State of Hyderabad and retired after the States Reorganization Act, 1956 had come into force.
This Court allowed the two Appeals and reversed the said judgment of the Division Bench, held that the letter dated April 28, 1973 from the Joint Secretary to the Government of India, Cabinet Secretariat did not amount to a previous approval granted by the Central Government to the amendment made by the Notification dated February 3, 1971 to clause (b) of Rule 299 (1) and that, the Notification was invalid and inoperative so far as it concerned persons referred to in sub sections (1) and (2) of Section 115 of the States Reorganization Act, 1956.
[936D G] In the instant case, the Appellant had retired prior to the appointed day, November 1, 1956.
He therefore did not fall under either sub section (1) or 932 sub section (2) of section 115 and the proviso to sub section (7) of that section had no application to him.
The amendment to the Rules, so far as he was concerned, did not, therefore, require any previous approval of the Central Government even though thereby the conditions of the service were being varied to his disadvantage.
[937F G] 2.
Pension being a fundamental right, it could only be taken away or curtailed in the manner provided in the Constitution, [938E] In the instant case, the fundamental right to receive pension according to the rules in force accrued to the Appellant when he retired from service.
By making a retrospective amendment to the said Rule 299 (1) (b) more than fifteen years after that right had accrued to him, what was done was to take away the Appellant 's right to receive pension according to the rules in force at the date of his retirement or in any event to curtail and abridge that right.
To that extent, the said amendment was void.
[938H; 939A] 3.
The Appellant was entitled to succeed in view of the judgment of this Court in Deokinandan Prasad 's case.
The Division Bench of the High Court has misunderstood the ratio of that decision.
It was held in that case that pension is not a bounty payable at the sweet will and pleasure of the Government but is a right vesting in a Government servant and was property under clause (1) of Article 31 of the Constitution and the State had no power to with hold the same by a mere executive order.
It was also held that this right was also property under sub clause (f) of clause (1) of Article 19 of the Constitution and was not saved by clause (5) of that Article, and that this right of the Government servant to receive pension could not be curtailed or taken away, by the State by an executive order.
[937H; 938A D] 4.
The fact that sub clause (f) of clause (1) of Article 19 and Article 31 have been omitted from the Constitution by the Constitution (Forty fourth Amendment Act,) 1978 with effect from June 20, 1979 was immaterial because on the date when the said Notification was issued, these provisions were part of the Constitution.
[939B C] 5, The Supreme Court reversed and set aside the Judgment of the Division Bench of the Andhra Pradesh High Court and restored the order passed by the Single Judge of that High Court.
The Supreme Court directed the State of Andhra Pradesh to pay to the Appellant the amounts due to him according to the Judgment of the Single Judge of the High Court within one month and pay to him pension in future at the rate of Rs. 1000 per month in the Government of India currency.
[939D E]


judgement:
Civil Appeal No. 1936 of 1978.
Appeal by Special leave from the Judgment and order dated the 2nd August, 1978 of the Punjab & Haryana High Court in Civil Writ Petition No. 3272 of 1978.
K.K. Jain, S.K. Gupta, P. Dayal and Arun D. Sauger for the Appellant.
Harbans Lal, Ms. Kailash Mehta and R.N. Poddar or the Respondent.
Messrs. Depro Foods Limited entered into a contract with the Haryana State Industrial Development Corporation Limited, whereby the said Corporation underwrote preference shares of Messrs. [, Depro Foods Limited of Rs. 100 each for a total value of Rs. 3.6 lacs on which a dividend of 9.5% per annum was payable.
The appellant who was apparently, at the relevant time, the Managing Director of Messrs. Depro Foods Limited, executed an agreement under which he guaranteed in his personal capacity the payment of the dividend income due in respect of the aforesaid shares to the said Corporation.
It is not disputed that Messrs. Depro Foods Limited did not pay Rs. 1,96,961 representing the dividend payable to the said Corporation, and therefore the appellant became personally liable as Guarantor to pay that amount.
lt seems that on the failure of the appellant to make payment, the said Corporation invoked a provision in the Guarantee agreement which declares: 942 "5.
That the dues on account of this guarantee will be recoverable in the manner in which land revenue is collected by the Government".
Consequently it applied to the Assistant Collector, Sonepat, for instituting recovery proceedings.
The Assistant Collector commenced coercive measures, which included the issue of a warrant for the arrest of the appellant.
The appellant filed a writ petition in the High Court but a Division Bench of the High Court passed an order on August 2, l 978 summarily dismissing the writ petition At one stage during the hearing of this appeal it appeared possible that the dispute could be resolved if even now after a lapse of six years the appellant was prepared to discharge his liability as Guarantor by making payment to the Corporation of the amount sought to be recovered, if necessary in accordance with a convenient time schedule of instalments, but Shri K.K. Jain, learned counsel for the appellant, stated frankly that in spite of repeated communications to his client he had not received any reply from him.
The questions have been raised by learned counsel for the appellant.
Both questions arise on the assumption that the appellant is liable to pay the amount due from him.
The first question is: Whether the amount can be recovered as an arrear of land revenue, including the mode by detention, where such right is founded in private agreement ? The other questions is: If the recovery is made by reference to clause (bb) of section 98 of the Punjab Land Revenue Act, 1887 which speaks of: "(bb) Dividend payable to the Government on 1.
Cumulative Redeemable Preference Shares subscribed by or on behalf of the Government".
Can that clause be employed for recovering dividend payable to Haryana State Industrial Development Corporation Limited ? Now there is no dispute that the appellant knowingly and deliberately entered into the Guarantee agreement, and is liable as Guarantor to make payment of the dividend due from Messrs Depro Foods Limited.
Nor is it disputed that the amount due, with interest, stands at 2,02,166 in respect of the period ending with the year 1977.
It was not contended that the appellant in fact does not possess sufficient funds or cannot avail of sufficient per 943 sonal property for the purpose of discharging the liability.
The record also shows that before instituting coercive proceedings, the Assistant Collector provided the appellant an opportunity to pay up the amount due from him, and that the appellant make no attempt to discharge the liability.
When that is so, we are of opinion that he is not entitled to relief in these proceedings.
The appeal arises out of a writ petition, and it is well settled that when a petitioner invokes the jurisdiction of the High Court under Article 226 of the Constitution, it is open to the High Court to consider whether, in the exercise of its undoubted discretionary jurisdiction, it should decline relief to such petitioner if the grant of relief would defeat the interests of justice.
The Court always has power to refuse relief where the petitioner seeks to invoke its writ jurisdiction in order to secure a dishonest advantage or perpetuate an unjust gain.
This is a case where the High Court was fully justified in refusing relief.
On that ground alone, the appeal must fail.
Before parting with this case, we think it appropriate to point out that it would be beneficial to the general administration of justice if in certain cases where the High Court disposes of a writ petition in limine it does so by an order incorporating the reasons for such order.
Where a case is admitted to final hearing, the judgment of the High Court disposing of the appeal almost invariably sets forth the reasons for its decision; We think it desirable that even when a writ petition is dismissed in limine the High Court should set out its reasons, however briefly, for doing so, especially in those cases where the matter in controversy is the subject of judicial examination for the first time and has not been processed earlier by an inferior judicial or quasi judicial authority.
It is of some importance p that party should know from the court of first instance the reasons for an adverse decision received by it, for that promotes acceptance of the judgment and thereby ensures credibility and public confidence in the judicial institution.
It must be remembered that the High Court exercises original jurisdiction under Article 226 of the Constitution, and it is only appropriate that a petitioner whose writ petition is dismissed in limine should know what are the precise reasons for the adverse order, whether the writ petition has been rejected on the ground of laches or other preliminary ground or on the merits of the controversy, and what are the reasons of the High Court therefor.
We may add that a brief statement of reasons rendered by the High Court, when dismissing the writ 944 petition in limine, is of great assistance also to this Court when the judgment and order of the High Court are sought to he brought here by a petition for special leave to appeal.
To sum up, we think it desirable that the High Court, when dismissing in limine, should set forth a brief statement of the reasons for its order instead of disposing of the proceeding by the single word "dismissed".
Upon the considerations set forth earlier, we dismiss the appeal but without any order as to costs.
M.L.A. Appeal dismissed.

summary/full:
The Haryana State Industrial Development Corporation Limited (for short, the Corporation) underwrote some preference shares of M/s. Depro Foods Limited.
The appellant Managing Director of M/s .
Depro Foods Ltd. guaranteed by an agreement in his personal capacity the payment of the dividend income due in respect of the aforesaid shares to the Corporation.
One of the provisions in the guarantee agreement declared "that the dues on account of this guarantee will be recoverable in the manner in which land revenue is collected by the Government." The Corporation applied to the Assist and Collector for instituting recover proceedings, against the appellant because M/s. Depro Foods Ltd. failed to pay Rs, 1,96,961 representing the dividend payable by it.
The Assistant Collector issued a warrant for the arrest of the appellant since he made no effort to pay up the amount due from him.
The appellant filed a writ petition in the High Court against the recovery proceedings which was dismissed in limine.
Hence this appeal by special leave.
Dismissing the appeal, ^ HELD: (1) This Court always has power to refuse relief where the petitioner seeks to invoke its writ jurisdiction in order to secure a dishonest advantages or perpetuate an unjust gain.
Under article 226 of the Constitution, it is open to the High Court to consider whether, in the exercise of its undoubted discretionary jurisdiction, it should decline relief to such petitioner if the grant of relief would defeat the interests of justice, The High Court was fully justified in refusing relief to the petitioner.
[943C; B] 941 (2) In the instant case the appellant knowingly and deliberately entered into the Guarantee Agreement, and is liable as Guarantor to make payment of the dividend due from Messrs Depro Foods Limited.
It was not contended that the appellant in fact does not possess sufficient funds or cannot avail of sufficient personal property for the purpose of discharging the liability.
The record also shows that the appellant made no attempt to discharge the liability.
When that is so he is not entitled to relief in these proceedings.
[942H; 943A B] (3) It is desirable that the High Court, when dismissing a writ petition in limine should set forth a brief statement of the reasons for its order instead of disposing of the proceedings by the single word 'dismissed ' especially in those cases where the matter in controversy in the subject of judicial examination for the first time and has not been processed earlier by an inferior judicial or quasi judicial authority.
[943E F]


judgement:
Civil Appeal No. 2906 of 1981.
Appeal by Special leave from Judgment and order dated the 6th July, 1981 of the Bombay High Court in Writ Petition No. 227 of 1981.
Raju Ramachandran and Mrs Sadhana Ramachandran for the Appellant.
S.B. Bhasme, K. Rajendra Choudhary and K. Sivraj Choudhary for Respondent.
M N Shroff for Respondent No. 2 (NOT PRESENT) The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The appellant in this appeal by special leave under article 136 of the Constitution was a member of the Armed Forces of the Union from August, 1942 until August 17, 1970 when he retired from the Army, In 1964, he became the owner of a flat in a co operative society in Tardeo Bombay having inherited the same from his brother.
The respondent was already the tenant of the premises when the appellant inherited it as the owner.
Soon after his retirement, the appellant filed a suit for ejectment against the respondent on the grounds of default in payment of rent, bona fide personal requirement and unlawful submitting.
This was in 1971.
While the suit was still pending, the Bombay Rents, Hotel and Lodging House Rates Central Act, 1947 was amended in 1975 by the introduction of sec.
13 A 1.
This was a special provision aimed at enabling a member of the Armed Forces of the Union or a retired members of the said Armed Forces to recover possession of premises bona fide required by him for his occupation or the occupation of members of his family on the production of a certificate from the Head of the Service or the Commanding Officer.
The certificate was to specify that the indivi 753 dual concerned was presently a member of the armed forces of the Union or that he was such a member and was now a retired ex serviceman and that he did not possess any other suitable residence in the local area wherever he or any member of his family could reside.
It was further provided that the certificate was to be conclusive evidence of the facts stated therein An important distinction between the general provision contained in Section 13 (1) (g) and the special provision Section 13 A 1 is that under the special provision a tenant is disabled from taking advantage of Section 13 (2) which provides that no decree for eviction shall be passed on the ground specified in Section 13 (I) (g) if the court is satisfied that having regard to all the circumstances of the case, greater hardship would be caused by passing the decree than by refusing to pass it.
The appellant, therefore, preferred to file a fresh suit for eviction of the respondent under Section 13 A 1 of the Bombay Rent Act rather than pursue the suit filed in 1971.
He filed a fresh suit under the new provision.
He produced the certificate required to be produced under Section 13 A 1.
The Rent Controller and the Appellate Authority concurrently found that the Appellant bona fide required the flat for his own occupation and decreed the suit.
The tenant moved the High Court of Bombay under article 227 of the Constitution A learned single Judge of the High Court, while not interfering with the concurrent finding of the subordinate tribunals that the landlord bona fide require the premises for his own occupation, nevertheless set aside the decree for eviction on the ground that Section 13 A 1 did not enable a member or a retired member of the armed forces to seek the remedy provided by Section 13 A 1 of the Bombay Rent Act if the premises were already in the occupation of the tenant when he became the landlord has appealed under article 136 of the Constitution.
Section 13 A 1 of the Bombay Rent Act is as follows: "13 A 1 Notwithstanding anything contained in this Act (a) a landlord, who is a member of the armed forces of the Union, or who was such member and is duly retired (which term shall include premature retirement) shall be entitled to recover possession of any premises, on the ground that the premises are bona fide required by him for occupation by himself or any member of his family (which term shall include a parents or other relation ordinarily residing with him and dependent on him); and the Court shall pass a decree for eviction on such ground 754 if the landlord, at the hearing of the suit, produces a certificate signed by the Head of his Service or his Commanding officer to the effect that (i) he is presently a member of the armed forces of the Union or he was such member and is now a retired ex serviceman; (ii) he does not possess any other suitable residence in the local area where he or the member of his family can reside; (b) where a member of the armed forces of the Union dies while in service or such member is duly retired as stated above and dies within five years of his retirement, his widow, who is or becomes a landlord of any premises, shall be entitled to recover possession of such premises, on the ground that the premises are bona fide required by her for occupation by herself of any member of her family (which term shall include her or her husband 's parent or other relation ordinarily residing with her): and the Court shall pass a decree for eviction on such ground, if such widow, at the suit, produces a certificate signed by the Area or Sub area Commander within whose jurisdiction the premises are situated to the effect that (i) she is a widow of a deceased member of the armed forces as aforesaid; (ii) she does not possess any other suitable residence in the local area where she or the members of her family can reside.
Explanation 1 For the purpose of clause (a) of this section, the expression "the Head of this Service", in the case of officers retired from the Indian Army includes the Area Commander, in the case of officers retired from the Indian Navy includes the Flag officer Commanding in Chief, Western Naval Command, and in the case of officers retired from the Indian Air Force includes the Station Commander.
755 Explanation 2 For the purposes of this section, any certificate granted thereunder shall be conclusive evidence of the facts stated therein".
It is true, as pointed out by the learned Single Judge, the Bombay Rent Act is a welfare legislation designed among other matters, to protect tenants from harassment and unreasonable eviction by Landlords and it should, therefore he interpreted in a broad and liberal spirit so as to further and not to constrain the object of the Act.
We also agree that the exclusionary provisions in the Act should be construed strictly so as to give a wide amplitude to the principal object of the legislation and to prevent its evasion on deceptive grounds.
But this does not mean that the intention of the legislature, expressed with sufficient vocabular clarity or gathered by reference to permissible sources, may be by passed to accommodate individual versions of what may appear reasonable.
The task of an interpreter is to ascertain intention.
It is often said, where the words of a statute are clear and unambiguous, there can arise no question of construction.
Such words ordinarily speak for themselves.
Since the words must have spoken as clearly to legislators as to judges, it may be safely presumed that the legislature intended what the words plainly say.
This is the true basis of the so called golden rule of Construction that "Where the language of an Act is clear and explicit, we must give effect to it, for in that case the words of the Statute speak the intention of the legislature".
A court should give effect to plain words not because there is any charm or magic in the plainness of such, words but because plain words may be expected to convey plainly the intention of the legislature.
Bearing these general principles in mind, if we look at Section 13 A 1 against the background and in the light of the object and the remaining provisions of the Act, what do we find? As we said earlier one of the principal objects of the Act is to protect the tenant against unreasonable eviction by a landlord.
So, the Act stipulates the grounds on which a Landlord may seek eviction of a tenant.
Section 13 (I) (g) in particular enables a landlord to recover possession of any premises if the Court is satisfied 'that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held.
So solicitous indeed is the legislature about protecting the tenant that Section 13 (2) contains a further stipulation that.
"No decree for eviction shall be passed on the ground specified in clause (g) of sub section (I) if the Court is satis 756 fied that, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant greater hardship would be caused by passing the decree than by refusing to pass it", and "Where the Court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the Court shall pass the decree in respect of such part only".
Notwithstanding the expressed legislative bias in favour of the tenant, the legislature itself made a serious departure from the general rule so as to lean in favour of landlords who are or were members of the armed services, and who because of the exigencies of their service were not able to occupy their own premises during the course of their service.
Section 13 A 1 was enacted, relaxing the rigour of Section 13 in favour of a landlord who is or was a member of the armed forces.
It is now provided that if he produces a certificate in the manner prescribed it shall be taken as established, without further proof that he is presently a member of the armed forces of the Union or that he was such member and is now a retired ex serviceman and that he does not possess any other suitable residence in the local area where he or any member of his family can reside.
All that he had to further prove is that he bona fide required the premises for occupation by himself or any member of his family.
The certificate is conclusive proof that he did not possess any suitable residence in the local area but not that he bona fide requires the same for occupation by himself or any member of his family.
There may be cases where he does not possess any other suitable residence in the local area and yet he does not bona fide require the premises for occupation by himself or any member of his family, being comfortably settled elsewhere with a no need or pressure to move.
But so soon as he establishes that he bona fide requires the premises for occupation for his family, he is entitled to recover possession and does not have to further prove that greater hardship would be caused to him than to the tenant if a decree for possession is not granted.
It is of course, implicit that the person producing the certificate is the landlord.
It is further implicit that the person mentioned in the certificate as presently or previously a member of the armed forces was at a simultaneous point of time both landlord and member of the armed forces.
This has been laid down recently by this Court in Mrs. Wintfred Ross & Anr.
vs Mrs. Ivy Fonseca 757 and others (1) where it was observed: "Having regard to the object and purposes of the Act and in particular Section 13 A 1 it is difficult to hold that Section 13 A 1 can be availed of by an ex member of the armed forces to recover from a tenant possession of a building which he acquires after his retirement.
Since a liberal interpretation of Section 13 A 1 of the Act is likely to expose it to a successful challenge on the basis of article 14 of the Constitution, it has to be read down as conferring benefit only on those members of the armed forces who were landlords of the premises in question while they were in service even though they may avail of it after their retirement.
Such a construction would save it from the criticism that it is discriminatory and also would advance the object of enacting it, namely, that members of the armed forces should not while they are in service feel worried about the difficulties of a long drawn out litigation when they wish to get back the premises which they have leased out during their service".
But we find it impossible on the plain language of Section 13 A 1 to further read down the provision as enabling a member or a retired member of the armed forces to recover possession of the premises only if he had himself originally let out the premises when he was a member of the armed forces and not if the tenancy had commenced before he became the landlord of the premises either by inheritance, partition, or any other made of transfer of property.
To place such an interpretation would be to virtually rewrite the provision.
The language of Section 13 A 1 which is sufficiently plain does not warrant or invite such an interpretation.
Nor is there anything elsewhere in the Act which compels such a construction.
The statement of object and reasons was read to us.
It says, "Defence Services Personnel are liable to transfers and to be stationed in different parts of the country.
They are often posted at non family stations.
Some of these personnel, who possess their own premises either in their home towns or elsewhere have necessarily to hire them out to other persons temporarily while they are away on duty.
It has been represented to the State Government by the military 758 authorities that on their retirement or transfer to non family stations the serving and ex service personnel find it extremely difficult to regain possession of their premises which they badly require for personal occupation permanently or for housing their families for the duration of their posting at non family stations.
In case of death of a service personnel while in service or death of ex service personnel shortly after the retirement, the widow also finds it extremely difficult to regain possession of their premises for her personal occupation or occupation of her family.
The case of Defence Services Personnel due to their special obligations and disabilities do need different treatment from that accorded to other landlords and in fact special provisions have been made for them in some of the States, whereby processes for each personnel to regain possession of their premises have been simplified and made more effective.
It is considered necessary to make a special provision in the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 to enable a member or retired member of the armed forces of the Union or a widow of such a member who dies while in service, or who dies within five years of his retirement, to regain possession of their premises, when bona fide required for occupation by them or members of their families and to provide that the Court shall be bound to pass a decree for eviction on such ground if such member or widow, as landlord, produces, at the hearing of the suit, the necessary certificate signed by the Head of his Service or His Commanding officer or the Area or Sub Area Commander within whose Jurisdiction the premises are situated.
The Bill intended to achieve these objects" It was said that the use of the words 'regain possession ' in the statement of objects and Reasons indicated that the member of the armed forces must have himself given possession, that is, he must have himself let the tenant into possession.
We cannot read so much into the Statement of object and Reasons and into the Statute, via the Statement of objects and Reasons.
The words 'regain possession ' in the context, are merely meant to convey 'obtain possession '.
To our mind, the intention of the legislature is 759 expressed with sufficient clarity by the language of Section 13 A 1 and there is nothing either in the Statute or in the Statute or in the Statement of objects and Reasons to suggest that the intention of the legislature was other than what we have said.
We therefore, allow the appeal, set aside the judgment of the High Court and restore those of the Rent Controller and the appellate authority.
The parties will bear their respective costs.
The respondents are given time till 30th September, 1984 to vacate the premises subject to their filing within four weeks from today an undertaking which shall be in the form usually adopted in the Court.
N.V.K. Appeal allowed.

summary/full:
The appellant was a member of the armed forces of the Union from August, 1942 until August 17, 1970 when he retired from the Army.
In 1964, he inherited a flat from his brother.
The respondent was already the tenant of the flat.
Soon after retirement, he filed a suit against the respondent for ejectment on the grounds of default, sub letting and bona fide personal requirement.
While the suit was pending, the Bombay Rents, Hotel and Lodging House Rents Control Act, 1947 was amended in 1975 by the introduction of section 13 A 1.
The appellant, therefore filed a fresh suit for eviction under section 13 A 1, and produced the required certificate.
The Rent Controller and the Appellate Authority concurrently found that the appellant bona fide required the flat for his own occupation and decreed the suit.
The respondent tenant moved the High Court under Article 227, and the High Court while not interfering with the concurrent finding of the subordinate tribunals that the appellant bona fide required the premises for 751 his own occupation, set aside the decree for eviction on the ground that section 13 A 1 did not enable a member or a retired member of the armed forces to seek the remedy provided by section 13 A 1, if the premises were already in the occupation of the tenant when he became the landlord while being a member of the armed forces.
Allowing the appeal to this Court, ^ HELD: 1.
(i) The Bombay Rent Hotel and Lodging House Rates Control Act, 1947 is a welfare legislation designed to protect tenants from harassment and unreasonable eviction by Landlords.
It should, therefore be interpreted in a broad and liberal spirit so as to further and not to constrain the object of the Act.
The exclusionary provisions in the Act should be construed strictly so as to give a wide amplitude to the principal object of the legislation and to prevent its evasion on deceptive grounds.
But this does not mean that the intention of the legislature, expressed with sufficient vocabulary clarity or gathered by reference to permissible sources, may be by passed to accommodate individual versions of what may appear reasonable.
[755B D] (ii) Where the words of a statute are clear and unambiguous, there can arise no question of construction.
Such words ordinarily speak for themselves.
[755D] (iii) A court should give effect to plain words, not because there is any charm or magic in the plainness of such words but because plain words may be expected to convey plainly the intention of the Legislature.
[755E] 2.
Section 13 A 1 of the Act was introduced in 1975, relaxing the rigour of section 13 in favour of a landlord who is or was a member of the armed forces.
The provision provides that if the landlord produces a certificate in the manner prescribed it shall be taken as established, without further proof that he was then a member of the armed forces of the Union or that be was such member and now a retired ex serviceman and that he did not possess any other suitable residence in the local area where he or any member of his family can reside.
All that he had to further prove was that he bona fide required the premises for occupation by himself or any member of his family.
The certificate is conclusive proof that he did not possess any suitable residence in the local area, and not that he bona fide required the premises for occupation by himself or any member of his family.
As soon as he established that he bona fide required the premises for occupation he was entitled to recover possession, and did not have to further prove that greater hardship could be caused to him than to the tenant if a decree for possession is not granted.
[756D G] 3.
It is impossible on the plain language of section 13 A 1 of the Act to read down the provision as enabling a member or a retired member of the armed forces to recover possession of the premises only if he had himself originally let out the premises when he was the member of the armed forces and not if the tenancy had commenced before he became the landlord of the premises either by inheritance, partition, or any other 752 mode of transfer of property.
To place such an interpretation would be to virtually rewrite the provision.
[757E F] 4.
The words 'regain possession ' in the Statement of objects and Reasons, merely mean obtain possession, and do not indicate that the member of the Armed Forces must have let the tenant into possession.
[758G] Mrs Winifred Ross and Anr.
vs Mrs. Ivy Fonseca and Ors., [1983] (2) S.C SCALE 900 referred to.