judgement:
ons Nos. 173 to 175 of 1967.
Petition under article 32 of the Constitution of India for enforcement of the fundamental rights.
A. K. Sen and E. C. Agrawala, for the petitioners (in W.P. No. 173 of 1967).
Frank Anthony, E. C. Agrawala and A. T. M. Sampat, for the petitioners (in W.P. No. 174 of 1967).
C. K. Daphtary, E. C. Agrawala, A. T. M. Sampat, section R. Agarwala and Champat Rai, for the petitioners (in W.P. No. 175 of 1967).
Niren De, Attorney General, N. section Bindra and R. N. Sachthey, for respondents Nos. 1 to 6 (in all the petitions).
H. R. Gokhale and Harbans Singh, for respondents Nos. 7 and 26 (in all the petitions).
The Judgment of the Court was delivered by Hegde, J.
These petitions are brought by some of the Gazet ted Officers serving in the forest department of the State of Jammu and Kashmir.
Some of them are serving as Conservators of Forests, some as Divisional Forest Officers and others as Assistant Conservators of Forests.
All of them feel aggrieved by the selections made from among the officers serving in the forest department of the State of Jammu and Kashmir to the Indian Forest Service, a service constituted in 1966 under section 3(1) of the All India Services Act, 1951 and the rules framed thereunder.
Hence they have moved this Court to quash notification No. 3/24/66 A 15(IV) dated the 29th July 1967 issued by the Government of India, Ministry of Home Affairs, as according to them the selections notified in the said notification are violative of articles 14 and 16 of the Constitution and on the further ground that the selections in question are vitiated by the contravention of the principles of natural justice.
They are also challenging the vires of section 3 of the All India Services Act, rule 4 of the rules framed under that Act and Regulation 5 of the Indian Forest Service (Initial Recruitment) Regulations 1966, framed under the aforementioned rule 4.
Section 2(A) of the All India Services Act, 1951 authorises the Central Government to constitute three new All India Services 460 including the Indian Forest Service.
Section 3 provides that the Central Government shall after consulting the Government of the States concerned including that of the State of Jammu and Kashmir to make rules for the regulation of recruitment and the conditions of service of persons appointed to those All India Services.
Sub section
(2) of section 2 prescribes that all rules made under that section "shall be laid for not less than fourteen days before Parliament as soon as possible after they are made, and shall be subject to such modifications, whether by way of repeal or amendment, as Parliament may make on a motion made during the session in which they are so laid.
" In pursuance of the power given under section 3, rules for the recruitment to the Indian Forest Service were made in 1966 Indian Forest Service (Recruitment) Rules, 1966.
The only rule relevant for our present purpose is rule 4(1) which reads : "As soon as may be, after the commencement of these rules, the Central Governme nt 'May recruit to the service any person from amongst the members of the State Forest Service adjudged suitable in accordance with such Regulations as the Central Government may make in consultation with the State Governments and the Commission.
" The Commission referred to in the above rule is the Union Public Service Commission.
The Proviso to that sub rufe is not relevant for our present purpose.
We may next come to the Regulations framed under rule 4(1).
Those Regulations are known as the Indian Forest Service (Initial Recruitment) Regulations, 1966.
They are deemed to have come into force on July 1, 1966.
Regulation 2 defines certain expressions.
Regulation 3 provides for the constitution of a special selection board.
It says that the purpose of making selection to State cadre, the Central Government shall constitute a special selection board consisting of the Chairman of the Union Public Service Commission or his nominee, the Inspector General of Forests of the Government of India, ad officer of the Government of India not below the rank of Joint Secretary, the Chief Secretary to the State Government concerned or the Secretary of that Government dealing with the forests and the Chief Conservator of Forests of the State Government concerned.
Regulation 4 prescribes the conditions of eligibility.
That Regulation contemplates the formation of a service in the senior scale and a service in the junior scale.
Regulation 5 is important for our present purpose.
It deals with the preparation of the list of suitable candidates.
It reads : "(1) The Board shall prepare, in the order of preference, a list of such officers of State Forest Service who 461 satisfy the conditions specified in regulation 4 and who are adjudged by the Board suitable for appointment to posts in the senior and junior scales of the Service.
(2) The list prepared in accordance with sub regulation (1) shall then be referred to the Commission for advice, by the Central Government along with : (a) the records of all officers of State Forest Service included in the list; (b) the records of all other eligible officers of the State Forest Service who are not adjudged suitable for inclusion in the list, together with the reasons as recorded by the Board for their non inclusion in the list; and (c) the observations, if any, of the Ministry of Home Affairs on the recommendations of the Board.
On receipt of the list, along with the other documents received from the Central Government the Commission shall forward its recommendations to that Government.
" Regulation 6 stipulates that the officers recommended by the Commission under sub r.
(3) of Regulation 5 shall be appointed to the service by the Central Government subject to the availability of vacancies in the State cadre concerned.
In pursuance of the Regulation mentioned above, the Central Government constituted a special selection board for select ing officers to the Indian Forest Service in the senior scale as well as in the junior scale from those serving in the forest department of the State of Jammu and Kashmir.
The nominee of the Chairman of the Union Public Service Commission, one M. A. Venkataraman was the Chairman of the board.
The other members of the board were the Inspector General of Forests of the Government of India, one of the Joint Secretaries in the Government of India, the Chief Secretary to the State Government of Jammu and Kashmir and Naqishbund, the Acting Chief Conservator of Forests of Jammu and Kashmir.
The selection board met at Srinagar in May, 1967 and se lected respondents 7 to 31 in Writ Petition No. 173 of 1967.
The cases of respondents Nos. 32 to 37 were reserved for further consideration.
The selections in question are said to have been made solely on the basis of the records of officers.
Their suitability was not tested by any examination, written or oral.
, Nor were they interviewed.
For several years before that selection the adverse entries made in the character rolls of the officers had not been 462 communicated to them and their explanation called for.
In doing so quite clearly the authorities concerned had contravened the instructions issued by the Chief Secretary of the State.
Sometime after the afore mentioned selections were made, at the instance of the Government of India, the adverse remarks made in the course of years against those officers who had not been selected were communicated to them and their explanations called for.
Those explanations were considered by the State Government and on the basis of the same, some of the adverse remarks made against some of the officers were removed.
Thereafter the selection board reviewed the cases of officers not selected earlier as a result of which a few more officers were selected.
The selections as finally made by the board were accepted by the Commission.
On the basis of the recommendations of the Commission, the impugned list was published.
Even after the review Basu, Baig and Kaul were not selected.
It may also be noted that Naqishbund 's name is placed at the top of the list of selected officers.
Naqishbund had been promoted as Chief Conservator of Forests in the year 1964.
He is not yet confirmed in that post.
G. H. Basu, Conservator of Forests in the Kashmir Forest Ser vice who is admittedly senior to Naqishbund had appealed to the State Government against his supersession and that appeal was pending with the State Government at the time the impugned selections were made.
M. I. Baig and A. N. Kaul Conservators of Forests also claim that they are seniors to Naqishbund but that fact is denied by Naqishbund.
Kaul had also appealed against his alleged supersession but it is alleged that appeal had been rejected by the State Government.
Naqishbund was also one of the candidates seeking to be selected to the All India Forest Service.
We were told and we take it to be correct that he did not sit in the selection board at the time his name was considered for selection but admittedly he did sit in the board and participate in its deliberations when the names of Basu, Baig and Kaul, his rivals, were considered for selection.
It is further admitted that he did participate in the deliberations of the board while preparing the list of selected candidates in order of preference, as required by Regulation 5.
The selection board was undoubtedly a high powered body.
That much was conceded by the learned Attorney General who appeared for the Union Government as well as the State Government.
It is true that the list prepared by the selection board was not the last word in the matter of the selection in question.
That list along with the records of the officers in the concerned cadre selected as well as not selected had to be sent to the Minis 463 try of Home Affairs.
We shall assume that as required by Regulation 5, the Ministry of Home Affairs had forwarded that list with its observations to the Commission and the Commission had examined the records of all the officers afresh before making its recommendation.
But it is obvious that the recommendations made by the selection board should have weighed with the Commission.
Undoubtedly the adjudging of the merits of the candidates by the selection board was an extremely important step in the process.
It was contended before us that section 3 of the All India Services Act, rule 4 of the rules framed thereunder and Regulation 5 of the Indian Forest Service (Initial Recruitment) Regulations 1966 are void as those provisions confer unguided, uncontrolled and uncanalised power on the concerned delegates.
So far as the vires of section 3 of the Indian Administrative Act is concerned, the question is no more res integra.
It is concluded by the decision of this Court in D. section Garewal vs The State of Punjab and Anr.(1) We have not thought it necessary to go into the question of the vires of rule 4 and Regulation 5, as we have come to the conclusion that the impugned selections must be struck down for the reasons to be presently stated.
There was considerable controversy before us as to the nature of the power conferred on the selection board under rule 4 read with Regulation 5.
It was contended on behalf of the petitioners that that power was a quasi judicial power whereas the case for the contesting respondents was that it was a purely administrative power.
In support of the contention that the power in question was a quasi judicial power emphasis was laid on the language of rule 4 as well as Regulation 5 which prescribe that the selections should be made after adjudging the suitability of the officers belonging to the State service.
The word 'adjudge ' we were told means "to judge or decide".
It was contended that such a power is essentially a judicial power and the same had to be exercised in accordance with the well accepted rules relating to the exercise of such a power.
Emphasis was also laid on the fact that the power in question was exercised by a statutory body and a wrong exercise of that power is likely to affect adversely the careers of the officers not selected.
On the other hand it was contended by the learned Attorney General that though the selection board was a statutory body, as it was not required to decide about any right, the proceedings before it cannot be considered quasi judicial; its duty was merely to select officers who in its opinion were suitable for being absorbed in the Indian Forest Service.
According to him the word 'adjudge ' in rule 4 as well as Regulation 5 means "found worthy of selection".
(1) [1959] 1 Supp.
S.C.R. 792.
464 The dividing line between an administrative power and a quasi judicial power is quite thin and is being gradually obliterated.
For determining whether a power is an administrative power or a quasi judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised.
Under our Constitution the rule of law pervades over the entire field of administration.
Every organ of the State under our Constitution is regulated and controlled by the rule of law.
In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate.
The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner.
The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbi trarily or capriciously.
The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision.
In recent years the concept of quasi judicial power has been undergoing a radical change.
What was considered as an administrative power some years back is now being considered as a quasi judicial power. 'Me following observations of Lord Parker C.J. in Regina vs Criminal Injuries Compensation Board, exhibit Parte Lain(1) are instructive.
"With regard to Mr. Bridge 's second point I cannot think that Atkin, L.J. intended to confine his principle to cases in which the determination affected rights in the sense of enforceable rights.
Indeed, in the Electricity Commissioners case, the rights determined were at any rate not immediately enforceable rights since the scheme laid down by the commissioners had to be approved by the Minister of Transport and by resolutions of Parliament.
The commissioners nevertheless were held amenable to the jurisdiction of this court.
Moreover, as can be seen from Rex.
vs Postmaster General, Ex parte Carmichael (2 ) and Rex.
vs Boycott Ex parte Keasley(3) the remedy is available even though the decision is merely a step as a result of which legally enforceable rights may be affected.
The position as I see it is that the exact limits of the ancient remedy by way of certiorari have never been and ought not to be specifically defined.
They have varied (1) , 881.
(2) [1928] 1 K.B.291.
(3) 465 from time to time being extended to meet changing conditions.
At one time the writ only went to an inferior court.
Later its ambit was extended to statutory tribunals determining a lis inter parties.
Later again it extended to cases where there was no lis in the strict sense of the word but where immediate or subsequent rights of a citizen were affected.
The only constant limits throughout were that it was performing a public duty.
Private or domestic tribunals have always been outside the scope of certiorari since their authority is derived solely from contract, that is, from the agree ment of the parties concerned.
Finally, it is to be observed that the remedy has now been extended, see Reg.
vs Manchester Legal Aid Committee, Ex parte R. A. Brand & Co. Ltd.(1) to cases in which the decision of an administrative officer is only arrived at after an inquiry or process of a judicial or quasi judicial character.
In such a case this court has jurisdiction to supervise that process.
We have as it seems to me reached the position when the ambit of certiorari can be said to cover every case in which a body of persons of a public as opposed to a purely private or domestic character has to determine matters affecting subjects provided always that it has a duty to act judicially.
Looked at in this way the board in my judgment comes fairly and squarely, within the jurisdiction of this court.
It is as Mr. Bridge said, 'a servant of the Crown charged by the Crown, by execu tive instruction, with the duty of distributing the bounty of the Crown. ' It is clearly, therefore, performing public duties.
" The Court of Appeal of New Zealand has held that the power to make a zoning order under Dairy Factory Supply Regulation 1936 has to be exercised judicially, see New Zealand and Dairy Board vs Okita Co operative Dairy Co. Ltd. (2).
This Court in The Purtabpore Co. Ltd. vs Cane Commissioner of Bihar and Ors.(3) held that the power to alter the area reserved under the Sugar Cane (Control) Order 1966 is a quasi judicial power.
With the increase of the power of the administrative bodies it has become necessary to provide guidelines for the just exercise of their power.
To prevent the abuse of that power and to see that it does not become a new despotism, courts are gradually evolving (1) ; (2) [1953] New Zealand Law Reports p. 366.
(3) ; 466 the principles to be observed while exercising such powers.
In matters like these, public good is not advanced by a rigid adherence to precedents.
New problems call for new solutions.
It is neither possible nor desirable to fix the limits of a quasi judicial power.
But for the purpose of the present case we shall ,assume that the power exercised by the selection board was an administrative power and test the validity of the impugned selections on that basis.
It is unfortunate that Naquishbund was appointed as one of the members of the selection board.
It is true that ordinarily the Chief Conservator of Forests in a State should be considered as the most appropriate person to be in the selection board.
He must be expected to know his officers thoroughly, their weaknesses as well as their strength.
His opinion as regards their suitability for selection to the All India Service is entitled to great weight.
But then under the circumstances it was improper to have included Naquishbund as a member of the selection board.
He was one of the persons to be considered for selection.
It is against all canons of justice to make a man judge in his own cause.
It is true that he did not participate in the deliberations of the committee when his name was considered.
But then the very fact that he was a member of the selection board must have had its own impact on the decision of the selection board.
Further admittedly he participated in the deliberations of the selection board when the claims of his rivals particularly that of Basu was considered.
He was also party to the preparation of the list of selected candidates in order of preference.
At every stage of this participation in the deliberations of the selection board there was a conflict between his interest and duty.
Under those circumstances it is difficult to believe that he could have been impartial.
The real question is not whether he was biased.
It is difficult to prove the state of mind of a person.
Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased.
We agree with the learned Attorney General that a mere suspicion of bias is not sufficient.
There must be a reasonable likelihood of bias.
In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct.
It was in the interest of Naqishbund to keen out his rivals in order to secure his position from further challenge.
Naturally he was also interested in safeguarding his position while preparing the list of selected candidates.
The members of the selection board other than Naqishbund, each one of them separately, have filed affidavits in this Court swearing that Naqishbund in no manner influenced their decision in making the selections.
In a group deliberation each member 467 of the group is bound to influence the others, more so, if the member concerned is a person with special knowledge.
Ms bias is likely to operate in a subtle manner.
It is no wonder that the other members of the selection board are unaware of the extent to which his opinion influenced their conclusions.
We are unable to accept the contention that in adjudging the suitability of the candidates the members of the board did not have any mutual discussion.
It is not as if the records spoke of themselves.
We are unable to believe that the members of selection board functioned like computers.
At this stage it may also be noted that at the time the selections were made, the members of the selection board other than Naqishbund were not likely to have known that Basu had appealed against his supersession and that his appeal was pending before the State Government.
Therefore there was no occasion for them to distrust the opinion expressed by Naqishbund.
Hence the board in making the selections must necessarily have given weight to the opinion expressed by Naqishbund.
This takes us to the question whether the principles of natural justice apply to administrative proceedings similar to that with which we are concerned in these cases.
According to the learned Attorney General those principles have no bearing in determining the validity of the impugned selections.
In support of his contention he read to us several decisions.
It is not necessary to examine those decisions as there is a great deal of fresh thinking on the subject.
The horizon of natural justice is constanlty expanding.
The question how far the principles of natural justice govern administrative enquiries came up for consideration before the Queens Bench Division in In re : H. K. (An Infant) (1).
Therein the validity of the action taken by an Immigration Officer came up for consideration.
In the course of his judgment Lord Parker, C.J. observed thus : "But at the same time, I myself think that even if an immigration officer is not in a judicial or quasi judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the subsection, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him.
That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly.
Good administration and an honest or bona fide decision must, as it seems to me, require not merely impartiality, nor merely bringing one 's mind to bear on the problem, but acting fairly; and to the limited extent that the circumstances of any particular case allow, and within the legislative frame work under (1) , 630.
468 which the administrator is working, only to that limited extent do the so called rules of natural justice apply, which in a case such as this is merely a duty to act fairly.
I appreciate that in saying that it may be said that one is going further than is permitted on the decided cases because heretofore at any rate the decisions of the courts do seem to have drawn a strict line in these matters according to whether there is or is not a duty to act judicially or quasi judicially.
" In the same case Blain, J. observed thus "I would only say that an immigration officer having assumed the jurisdiction granted by those provisions is in a position where it is his duty to exercise that assumed jurisdiction whether it be administrative, executive or quasi judicial, fairly, by which I mean applying his mind dispassionately to a fair analysis of the particular problem and the information available to him in analysing it.
If in any hypothetical case, and in any real case, this court was satisfied that an immigration officer was not so doing, then in my view mandamus would lie.
" In State of Orissa vs Dr. (Miss) Binapani Dei and Ors.(1) Shah, J. speaking for the Court, dealing with an enquiry made as regards the correct age of a government servant, observed thus "We think that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value.
It is true that the order is administrative in character,but even an administrative order which involves civil consequences as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice.
These rules can operate only in areas not covered by any law validly made.
In other words they do not supplant the law of the land but supplement it.
The concept of natural justice has undergone a great deal of change in recent years.
In the past it was thought that it included just two rules namely (1) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem).
Very soon there after a third rule was envisaged and that is that quasi judicial enquiries must be held in good faith, without bias and not arbitrarily (1) ; 469 or unreasonably.
But in the course of years many more subsidiary rules came to be added to the rules of natural justice.
Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice.
The validity of that limitation is now questioned.
If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries.
Often times it is not easy to draw the line that demarcates administrative enquiries from quasi judicial enquiries.
Enquiries which were considered administrative at one time are now being considered as quasijudicial in character.
Arriving at a just decision is the aim of both quasi judicial enquiries as well as administrative enquiries.
An unjust decision in an administrative enquiry may have more far reaching effect than a decison in a quasi judicial enquiry.
As observed by this Court in Suresh Koshy George vs The University of Kerala and Ors.(1) the rules of natural justice are not embodied rules.
What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose.
Whenever a cornplaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the obser vance of that was necessary for a just decision on the facts of that case.
It was next urged by the learned Attorney General that after all the selection board was only a recommendatory body.
Its recommendations had first to be considered by the Home Ministry and *.hereafter by the U.P.S.C.
The final recommendations were made by the U.P.S.C. Hence grievances of the petitioners have no real basis.
According to him while considering the validity of administrative actions taken, all that we have to see is whether the ultimate decision is just or not.
We are unable to agree with the learned Attorney General that the recommendations made by the selection board were of little consequence.
Looking at the composition of the board and the nature of the duties entrusted to it we have no doubt that its recommendations should have carried considerable weight with the U.P.S.C.
If the decision of the selection board is held to have been vitiated, it is clear to our mind that the final recommendation made by the Commission must also be held to have been vitiated.
The recommendations made by the Union Public Service Commission cannot be disassociated from the selections made by the selection board which (1) ; 470 is the foundation for the recommendations of the Union Public Service Commission.
In this connection reference may be usefully made to the decision in Regina vs Criminal Injuries Compensation Board exhibit Parte Lain(1).
It was next urged by the learned Attorney General that the mere fact that one of the members of the Board was biased against some of the petitioners cannot vitiate the entire proceedings.
In this connection he invited our attention to the decision of this Court in Sumer Chand Jain vs Union of India and another(2).
Therein the Court repelled the contention that the proceedings of a departmental promotion committee were vitiated as one of the members of that committee was favourably disposed towards one of the selected candidates.
The question before the Court was whether the plea of mala fides was established.
The Court came to the conclusion that on the material on record it was unable to uphold that plea.
In that case there was no question of any conflict between duty and interest nor any members of the departmental promotion committee was a judge in his own case.
The only thing complained of was that one of the members of the promotion committee was favourably disposed towards one of the competitors.
As mentioned earlier in this case we are essentially concerned with the question whether the decision taken by the board can be considered as having been taken fairly and justly.
One more argument of the learned Attorney General remains to be considered.
He urged that even if we are to hold that Naqishbund should not have participated in the deliberations of the selection board while it considered the suitability of Basu, Baig and Kaul, there is no ground to set aside the selection of other officers.
According to him it will be sufficient in the interest of justice if we direct that the cases of Basu, Baig and Kaul be reconsidered by a Board of which Naqishbund is not a member.
Proceeding further he urged that under any circumstance no case is made out for disturbing the selection of the officers in the junior scale.
We are unable to accept either of these contentions.
As seen earlier Naqishbund was a party to the preparation of the select list in order of preference and that he is shown as No. 1 in the list.
To that extent he was undoubtedly a judge in his own case, a circumstance which is abhorrent to our concept of justice.
Now coming to the selection of the officers in the.
junior scale service, the selections to both senior scale service as well as junior scale service were made from the same pool.
Every officer who had put in a service of 8 years or more, even if he was holding the post of an Assistant Conservator of Forests was eligible for being selected for the senior scale service.
In fact some (1) (2) Writ Petition No. 237/1966 decided on 4 5 1967.
471 Assistant Conservators have been selected for the senior scale service.
At the same time some of the officers who had put in more than eight years of service had been selected for the junior scale service.
Hence it is not possible to separate the two sets of officers.
For the reasons mentioned above these petitions are allowed and the impugned selections set aside.
The Union Government and the State Government shall pay the costs of the petitioners.
V.P.S. Petitions allowed.

summary/full:
In pursuance of the Indian Forest Service (Initial Recruitment) Regulation, 1966, framed under r. 4(1) of the Indian Forest Service (Recruitment) Rules made under the All India Services Act, 1951, a Special Selection Board was constituted for selecting officers to the Indian Forest Service in the senior and junior scales from officers serving in the forest department of the State of Jammu and Kashmir.
One of the members of the Board was the Chief Conservator of Forests of the State, as )required by the Regulations.
He was a Conservator of forests appointed as Acting Chief Conservator superseding another Conservator of Forests whose appeal to the State Government against his supersession was pending at the time the selections by the Board were made.
The Acting Chief Conservator was also one of the candidates seeking to be selected to the Indian Forest Service.
The Board made the 'selection of officers in the senior and junior scales.
The Acting Chief Conservator 's name was at the top of the list of selected officers, while the names of three conservators, (including the officer who was superseded), who were the Acting Chief Conservator 's rivals, were omitted.
The Acting Chief Conservator did not sit in the Selection Board at the time his name was considered, but participated in the deliberations when the names of his rivals were considered.
He also participated in the Board 's deliberations while preparing the list of selected candidates in order of preference.
The list and the records were sent to the Ministry of Home Affairs and the Ministry of Home Affairs forwarded the list with its observations to the Union Public Service Commission, as required by the Regulations, and the U.P.S.C. examined the records of the officers afresh and made its recommendations.
The Government of India thereafter notified the list.
The three conservators, whose names were not included in the list, and other aggrieved officers filed a petition in this Court under article 32 for quashing the notification.
On the questions : (1) Assuming that the proceedings in the present case were administrative proceedings, whether principles of natural justice applied to them; (2) Whether there was a violation of such principles of natural justice in the present case; (3) Since the recommendations of the Board were first considered by the Home Ministry and the final recommendations were made by the U.P.S.C., whether there was any basis for the petitioners ' grievances; (4) Whether there were grounds for setting aside the selection of all the officers including those in the junior scales, HELD : (1) The rules of natural justice operate in areas not covered by any law validly made, that is, they do not supplant the law of the land but supplement it.
They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice.
If that is their purpose, there is no reason why they should not be made applicable to administrative proceeding also, especially when it is not easy to draw the line that 458 demarcates administrative enquiries from quasi judicial ones, and an unjust decision in an administrative enquiry may have a more far reaching effect than a decision in a quasi judicial enquiry.
[468F G; 469B D] Suresh Koshy George vs The University of Kerala, ; , State of Orissa vs Dr., (Miss) Binapani Dei ; and In re : H. K. (An Infant) , 630, referred to.
(2) The concept of natural justice has undergone a great deal of change in recent years.
What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or the body of persons appointed for that purpose.
Whenever a complaint is made before a court that some principle of natural justice had been contravened, the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.
The rule that enquiries must be held in good faith and without bias, and not arbitrarily or unreasonably, is now included among the principles of natural justice.
[468G H; 469D L ] In the present case.
at the time of selection, the other members of the Board did not know that the appeal of the superseded conservator was pending before the State Government and hence there was no occasion for them to distrust the opinion of the Acting Chief Conservator.
There was a conflict between his interest and duty and he was a judge in his own cause.
Taking into consideration human probabilities and the ordinary course of human conduct, there was reasonable ground for believing that the Acting Chief Conservator was likely to have been biased.
He did not participate in some of the deliberations of the Board, but the facts that he was a member of the Board and that he participated in the deliberations when the claims of his rivals were considered and in the preparation of the list, must have had its impact on the selection, as the Board, in making the selection, must necessarily have given weight to his opinion.
In judging the suitability of the candidates the members of the Board must have had mutual discussions and though the other members filed affidavits stating that the Acting Chief Conservator in no manner influenced their decision, in group discussions, each member was bound to influence the others in a subtle manner and without their being aware of such influence.
[466D G; 467A D] In the circumstances of the case, the selection by the Board, could not be considered to have been taken fairly and justly as it was influenced by a member who was biased.
[470 C E] (3) The Selection Board was undoubtedly a high powered body, and its recommendations must have had considerable weight with the U.P.S.C.
The recommendation made by the U.P.S.C. could not be dissociated from the selection made by the Selection Board which was the foundation for the recommendations of the U.P.S.C.
Therefore, if the selection by the Selection Board was held to be vitiated, the final recommendation by the U.P.S.C, must also be held to have been vitiated.
[462 G H; 469G H] Regina vs Criminal Injuries Compensation Board, Ex Parte Lain, , 881, applied.
Sumer Chand Jain vs Union of India W.P. No. 237 of 1966, dated 4 5 1967, distinguished.
459 (4) The selections to both senior and junior scales were made from the same pool and so, it was not possible to separate the two sets of Officers.
Therefore, it was not sufficient to merely direct the Selection Board to consider the cases of the three conservators who were excluded, but all the selections had to be set aside.
[470 G H; 471A]


judgement:
Appeal No. 380 of 1965.
Appeal from the judgment and decree dated May 23, 1963 of the Allahabad High Court, Lucknow Bench in First Civil Appeal No. 70 of 1950.
429 C. B. Agarwala, Ishtiaq Ahmad Abbasi, section Rehman and, C. P. Lal, for the appellants.
section P. Sinha, Mohammad Hussain and section section Shukla, for the respondents Nos. 1 and 3.
The Judgment of the Court was delivered by Shah, J.
By our judgment dated April 19, 1968, we passed the following order in this appeal : "It will be declared that the deed of trust executed by Raja Bishwanath on August 29, 1932, did not operate to settle any property being part of the taluqdari estate and governed by the Oudh Estates Act 1 of 1869, for the purposes specified therein.
" The Senior Raj Kumar applied for review of judgment on the ground that the deed of trust dated August 29, 1932, settled properties non taluqdari as well as taluqdari and the Court at the earlier hearing did not make any order as to the revolution of the non taluqdari property.
Apparently at the earlier hearing no argument on the matter now sought to be raised was advanced, though the hearing lasted for several days.
We have, however, granted review of judgment and heard the parties on the question whether a different rule of revolution prevails in respect of properties which are non taluqdari.
We have held that on the death of Raja Surpal Singh the taluqdari estate of Tiloi vested in Rani Jagannath Kuar, and she continued to hold the property as life owner under section 22(7) of the Oudh Estates Act, even after she adopted Raja Bishwanath Singh on February 21, 1901, and so long as she was alive Raja Bishwanath Singh had no interest in the estate which he could settle or convey.
The deed of settlement was executed by Raja Bishwanath Singh during the lifetime of Rani Jagannath Kuar and did not operate to convey the taluqdari estate.
Counsel for the Senior Raj Kumar contends that even if Raja Bishwanath had no interest in the taluqdari estate, under the ordinary Hindu law, on adoption the non taluqdari property left by Raja Surpal Singh vested in Raja Bishwanath Singh and he was competent under the deed of settlement to dispose of the property in the manner directed by that deed.
Counsel says that the revolution of non taluqdari property is governed by the rules of Hindu law, and that on adoption of a son by Rani Jagannath Kuar her interest in the property was divested and the adopted son became the owner of the property.
430 Counsel for the Junior Raj Kumar resists this claim.
Section 8 of the Oudh Estates Act 1 of 1869 provides for the preparation of lists of taluqdars and grantees, and the second list prepared under that section is a list of taluqdars whose estates, according to the custom of the family on and before the 13th day of February, 1856, ordinarily devolved upon a single heir.
The taluqdari estate of Tiloi was entered in the second list.
By section 10 of the Act .it is provided : "No persons shall be considered taluqdars or grantees within the meaning of the Act, other than the persons named in such original or supplementary lists as aforesaid.
The Courts shall take judicial notice of the said lists and shall regard them as conclusive evidence that the persons named therein are such taluqdars or grantees. ' Section 22 of the Act prescribes a special mode of succession to intestate taluqdars and grantees.
By cl.
(6) of section 22 in default of any brother, or a male lineal descendant, the estate devolves upon the widow of the deceased taluqdar or grantee, heir or legatee, for her life time only, and by cl.
(7) on the death of the widow, the estate devolves upon such son as the widow shall, with the consent in writing of her deceased husband, have adopted, and his male lineal descendants.
The Tiloi Estate which was a taluqdari estate, therefore, devolved upon Rani Jagannath Kuar and she held that estate during her life time.
The rule of Hindu law that on the adoption of a son by a widow to her deceased husband, the estate vests in the adopted son, is by the express provisions of cls.
(6) & (7) of section 22 of the Oudh Estates Act inapplicable to taluqdari estates.
That was so held in our earlier judgment dated April 19, 1968, and on that account the claim of the Senior Raj Kumar to take the taluqdari estate under the deed of settlement 'was negatived.
It was decided by the Judicial Committee of the Privy Council that it will be presumed that the non taluqdari estate of a taluqdar governed by the Oudh Estates Act, 1869, is governed by the same rules which govern succession to the taluqdari estate.
In Rani Huzur Ara Begam and Anr.
vs Deputy Commissioner, Gonda(.), the Judicial Committee held that the entry of a taluqdar in List 2 prepared under section 8 of the Oudh Estates Act, 1869, which raises an irrebuttable presumption of single heir succession to the taluqdari property also raises a presumption, rebuttable by evidence proving a different rule of revolution, that the family custom of ,single heir succession applicable to the taluqa governs the suc (1) L.R. 65 I.A. 397.
431 cession to the non taluqdari property, movable as well as immovable, of the taluqdar.
In that case the taluqdar of Utraula Estate obtained decrees for recovery of money against a debtor.
The taluqdar died on March 4, 1934, leaving him surviving a widow, a daughter and two sons.
The widow on behalf of herself and as the guardian of her daughter filed applications for execution of the decrees obtained by the taluqdar.
The execution was resisted on the ground that the widow and the daughter had no right to enforce the decrees because the right to the decrees had devolved upon the eldest son who was under the Oudh Estates Act the, sole heir under the law and family custom of single heir succession.
The Board upheld the contention raised ,by the judgment debtor.
They observed : "Now, the taluqdar of the Utraula Estate is named in list 2 of the taluqdars prepared under section 8 of the Oudh Estates Act, 1 of 1869, whose estate, according to the custom of the family on or before February 13, 1856, ordinarily devolved upon a single heir.
Section 10 of the statute provides that the Court shall take judicial notice of the said list and regard as conclusive the fact that the person named therein is such taluqdar.
In other words, there was a pre existing custom attaching to the estate on which its inclusion in list 2 was based.
There is, therefore, an irrebuttable presumption in favour of the existence of the custom of the family by which the estate devolves on a single heir, but the provision as to the conclusiveness of the custom is confined to the estate coming within the ambit of the statute.
It does not apply to any property which is not comprised in the estate or taluqa.
What is the rule which governs succession to non taluqdari property ? If immovable property forming part of the taluqa is governed by the custom of single heir succession, there is no prime facie reason why immovable property which is not comprised in the taluqa should follow a different rule.
Indeed, it has been decided by this Board that there is a presumption that the rule as to succession to a taluqa governs also the succession to non taluqdari immovable property: Murtaza Husain Khan vs Mahomed Yasin.
Ali Khan [(1916) L.R. 43 I.A. 269].
It must, therefore, be taken as a settled rule that, whereas the entry of a taluqdar in list 2 is conclusive evidence that this taluqa is governed by the rule of revolution on a single heir, it raises also a presumption that the family custom applying to a taluqa governs also the succession to non taluqdari immovable property." 432 Counsel for the Senior Raj Kumar contended that the rule enunciated by the Judicial Committee in Rani Huzur Ara Begam 's case(1) applies only to Muslims and has no application to Hindus.
Counsel submitted that in Murtaza Husain Khan vs Mahomed Yasin Ali Khan(2) Mr. Ameer Ali delivering the judgment of the Board explained that the reason of the rule is that the presumed custom applies to the acquired property of a Muslim taluqdar since under the Mahomed an law, ancestral and self acquired properties are subject to the same rule of descent, and that in the case of self acquired property of a Hindu taluqdar, the presumed custom only affects the succession upon proof that the property was incorporated with the taluqa, either by intention of the owner or by family custom.
It is true that in Rani Huzur Ara Begam 's case(2) the dispute related to the succession to the estate held by a Muslim taluqdar, but the Board in that case relied upon the observations at p. 148 in Thakur Ishri Singh vs Baldeo Singh(3) a case of Hindu succession to a taluqdari held by a Hindu taluqdar.
Counsel also invited our attention to section 23 of the Oudh Taluqdars Act, but we see no inconsistency between the presumption that non taluqdari property also devolves upon a single heir and the terms of section 23 of the Act.
Counsel for the Senior Raj Kumar contends that the decision of the Judicial Committee gives no reasons in support of the view taken by the Board and should be reconsidered by this Court.
We are unable to agree with that contention.
The rule has apparently been settled for the last many years that where property devolves upon a single heir of a taluqdar entered in the second list, there is a presumption that the non taluqdari estate also devolves upon him and we see no reason to depart from that rule.
To do so would result in upsetting settled titles.
Prior to the enactment of the Oudh Estates Act, 1869, there was no distinction between taluqdari and non taluqdari estates and the presump tion merely gives effect to family custom.
There is, therefore, a presumption, unless rebutted, that non taluqdari property of a taluqdar entered in List 2 devolves by the custom of the family upon a single heir.
On the death of Raja Surpal Singh his entire estate devolved, upon his wife Rani Jagannath Kuar and by virtue of the custom, she must be presumed to have remained life owner of the non taluqdari estate also.
The customary rule may undoubtedly be rebutted by evidence to the contrary, but at no stage of the hearing of this protracted trial was the contention raised that if the Senior Raj Kumar had under the deed of (1) L.R. 65 I.A. 397.
(2) L.R. 43 I.A. 269.
(3) L.R. 11 I.A. 135.
433 settlement interest in the non taluqdari estate even if his claim to the taluqdari estate under that deed failed to take effect.
It was then urged that in any event the widow of a taluqdar is not an "heir" within the definition of the, Act.
It is true that in the interpretation clause in the Act an "heir" means a person who has inherited or inherits otherwise than as a widow or a mother, an estate or portion of an estate whether before or after the commencement of the Act.
But we fail to appreciate the bearing of this definition upon the question in issue.
By virtue of section 22(6) of the Act the taluqdari.
estate devolved upon Rani Jagannath Kuar on the death of her husband and the estate enured during her life time.
She also inherited the non taluqdari estate.
Techni cally she may not be called an "heir" under the Act, but that is irrelevant in determining whether in the devolution of the taluqdari and non taluqdari estates different rules prevail.
Counsel then contended that though the argument was not raised at an earlier stage, the Senior Raj Kumar should be permitted to amend his pleading to contend that there was a custom in the family under which non taluqdari estate did not devolve upon a single heir.
This case is more than 22 years old and we do not think that we would be justified at this date in allowing the parties to raise a new contention and give it a fresh lease of life.
On the record there is evidence relating to devolution of the estate since the time of Raja Jagpal Singh to whom the Tiloi Estate was granted by the Government, and it has never been suggested that the non taluqdari estate devolves otherwise than upon a single heir.
Counsel also contended that even if leave to amend the written statement be not granted to the Senior Raj Kumar the Court may review the evidence and hold on the evidence already on the record that such a custom did prevail in the family.
Our attention has, however, not been invited to any reliable evidence on this part of the case.
We, therefore, declare that even in the non taluqdari estate left by Raja Surpal Singh which devolved upon his widow Rani Jagannath Kuar for her life time, Raja Bishwanath Singh had on August 29, 1932, no interest which he could transfer, alienate or settle.
Counsel for the Senior Raj Kumar finally submitted that the Trial Court did not decide issues Nos.
14 & 15 relating to the rights of Rani Aditya Binai Kumari defendant No. 4 and Rani Fanindra Rajya Lakshmi Devi defendant No. 5 and these issues should be decided.
No argument was advanced before 434 the High Court in respect of issues Nos.
14 & 15.
The reason is obvious : in the Trial Court the defendants agreed that no findings should be recorded on those issues.
We cannot at this stage enter upon the trial of issues which, it was agreed, had to be tried in another suit.
The Senior Raj Kumar will pay the costs of this hearing.

dataset_name: IN-Abs

summary/full:
Section 8 of the Oudh Estates Act 1 of 1869 provided for the preparation of lists of taluqdars and grantees, and another list of taluqdars whose estates, according to the custom of the family on and before 13th February, 1856, ordinarily devolved upon a single heir.
The taluqdari estate of Tiloi was entered in the second list.
Upon the death of the taluqdar and in the absence of any brother or a male lineal descendant, the estate devolved, in accordance with the provisions of section 22(6) upon the widow of the deceased taluqdar for her life.
Thereafter she adopted a son.
The adopted son by a deed of trust executed in August, 1932, settled certain properties.
By judgment dated April 19, 1968, this Court declared that the deed of trust of August, 1932 did not operate to settle any property being part of the taluqdari estate and governed by the Oudh Estates Act of 1869.
In the present petition for review of the judgment it was contended that even if the settlor had no interest in the taluqdari estate under the ordinary Hindu law, on adoption, the non taluqdari property vested in him and he was competent under the deed of settlement to dispose of the property in the manner directed by that deed.
It was also contended that the widow of a taluqdar was not an "heir" within the definition of the expression in the Act.
HELD : That even in the non taluqdari estate left by the taluqdar which devolved upon the widow, her adopted son, the settlor, had so, long as the widow was alive no interest which he could transfer, alienate or settle.
[433G] it is well settled that where property devolves upon, a single heir of a taluqdar entered in the second list under section 8 of the Act, there is a rebuttable presumption that the non taluqdari estate also devolves upon him.
In the present case there was no reason to depart from that rule.
Prior to the enactment of the Oudh Estates Act 1869 there was no dis tinction between taluqdari and non taluqdari estate and the presumption merely gave effect to family custom.
[432E F] Rani Huzur Ara Begam and Anr.
vs Deputy Commissioner Gonda, L.R. 65 I.A. 397 followed.
Murtaza Husain Khan vs Mahomed Yasin Ali Khan L.R. 43 I.A. 269;Thakur Ishri Singh vs Baldeo Singh, L.R. 11 I.A. 135: referred to.


judgement:
Appeal No. 882 of 1968.
Appeal by special leave from the judgment and order dated July 1, 1966 of the Calcutta High Court in Civil Reference No. 20 of 1963.
445 D. N. Mukherjee and Sunil Kumar Ghosh, for the appellant.
A. K. Sen, Sukumar Ghose and Krishna Sen, for respondent No. 1.
B. Sen, Sukumar Basu and P. K. Chakravarti, for respondent No. 2.
Niren De, Attorney General, V. A. Seyid Muhammad, R. H. Dhebar and section P. Nayar, for the Union of India.
The Judgment of the Court was delivered by Bhargava, J.
Rama Sundari Debi, the first respondent in this appeal by special leave, instituted a suit for the ejectment of Indu Bhusan Bose appellant who was a tenant in premises No. 18, Riverside Road, owned by respondent No. 1, situated within the cantonment area of Barrackpore.
The agreed rent was Rs. 250/per mensem but there was a dispute as to whether the owner or the tenant was liable to pay rates and taxes.
On an application presented by the appellant, the Rent Controller fixed fair rent under section 10 of the West Bengal Premises Tenancy Act No. XII of 1956 (hereinafter referred to as "the Act") at Rs. 170/per month inclusive of all cantonment taxes, and, in appeal, the amount was enhanced to Rs. 188/ per month inclusive of all cantonment taxes.
Respondent No. 1, in December, 1960, served a notice on the appellant to quit and, on failing to get vacant possession, filed a suit in the Court of the Munsif.
In the plaint, respondent No. 1 claimed that, regulation of house accommodation including control of rents being a subject in entry No. 3 of List I of the Seventh Schedule to the Constitution, the State Legislature could not competently enact a law on the same subject for cantonment are as, so that the appellant was pot entitled to protection under the Act which had been extended to that area by the State Government.
It was urged that the extension of that State Act to the cantonment area was ultra vires and void.
The Munsif, thereupon, made a reference under section 113 of the Code of Civil Procedure to the High Court of Calcutta for decision of this constitutional question raised in the suit before him.
The High Court decided the reference by making a declaration that the notification, whereby the State Government had extended the provisions of the Act to the Barrackpore cantonment area, was ultra vires and void.
This is the decision of the High Court that has been challenged in this appeal.
It has been contended on behalf of the appellant that the High Court is not correct in holding that the field of legislation covered by the Act, which is primarily concerned with control of rents and eviction of tenants, is included within the expression 446 "regulation of house accommodation in cantonment areas" used in entry No. 3 of List I.
That entry is as follows : "3. Delimitation of cantonment areas, local self government in such areas, the constitution and powers within such areas of cantonment authorities and the regulation of house accommodation (including the control of rents) in such areas.
" The submission made is that regulation of house accommodation will not include within it laws or rules on the subject of relationship of landlord and tenant of buildings situated in the cantonment areas.
On the other hand, according to the appellant, legislation on this subject can be made either under entry No. 18 of List II, or entries Nos. 6, 7 and 13 of List 111, so that a State ,Legislature is competent to legislate and regulate relationship between landlord and tenant even in cantonment areas.
These relevant entries are reproduced below "List II 18.
Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and allenation of agricultural land; land improvement and agricultural loans; colonisation." "List III 6.
Transfer of property other than agricultural land; registration of deeds and documents.
Contracts, including partnership, agency, contracts of carriage, and other special forms of contracts, but not including contracts relating to agricultural land.
Civil procedure, including all matters included in the Code of Civil Procedure at the commencement of this Constitution, limitation and arbitration.
" On the scope of entry 3 of List 1, the argument advanced is that Parliament is empowered to legislate in respect of house accommodation situated in cantonment areas only to the extent that that house accommodation is needed for military purposes and laws are required for requisitioning or otherwise obtaining possession of that accommodation for such purposes.
In the alternative.
the submission made is that regulation of house accommodation by parliamentary law should be confined to houses acquired,.
requisitioned or allotted for military purposes.
This entry 3, according to the appellant, should not be read as giving Parliament the power to legislate, on the relationship of landlord 447 and tenant in respect of houses situated in cantonment areas if such houses are let out privately by a private owner to his tenant and have nothing at all to do with the requirements of the military.
We are unable to accept this submission.
The language of the entry itself does not justify any such interpretation.
In the entry, when power is granted to Parliament to make laws for the regulation of house accommodation in cantonment areas, there are no qualifying words to indicate that the house accommodation, which is to be subject to such legislation, must be accom modation required for military purposes, or must be accommodation that has already been acquired, requisitioned or allotted to the military.
In fact, if a legislation in respect of any cantonment was to be undertaken by Parliament for the first time under this entry, there would be, at the time of that legislation, no house in the cantonment already acquired, requisitioned or allotted for military purposes; and, if the interpretation sought to be put on behalf of the appellant were accepted, the power of Parliament to pass laws cannot be exercised by Parliament at all.
It is also significant that, in the entry, various items, which can be the subject matter of legislation by Parliament, are mentioned separately, and these are : (i) Delimitation of cantonment areas; (ii) local self government in such areas; (iii) the constitution and powers within such areas of cantonment authorities; and (iv) the regulation of house accommodation (including the control of rents) in such areas.
In none of these clauses there is any specification that the legislation is to be confined to areas or accommodation required for military purposes.
When legislating in respect of local self government in cantonment areas, it is obvious that Parliament will have to legislate for the entire cantonment area including portions of it which may be in possession of civilians and not military authorities or military officers.
Similarly, the powers of the cantonment authorities, which could be granted by legislation by Parliament; cannot be confined to those areas or buildings which are in actual possession of military authorities or officers and must be in respect of the entire cantonment area including those buildings and lands which may be in actual ownership as well as occupation of civilians.
In these circumstances, there is no reason to narrow down the scope of legislation on regulation of house accommodation and confine it to houses which are required or are actually in possession of military authorities or military officers.
The power to regulate house accommodation by law must extend to all house accommodation in the cantonment area 448 irrespective of its being owned by, or in the possession of, civilians.
In fact, if a law were to be made for the first time under ' this entry, all the houses would be either vacant or occupied by owners or occupied by tenants of owners under private agreements and the law, when first made, will have to govern such houses.
The scope of the expression "regulation of house accommodation" in this entry cannot, therefore, be confined as urged on behalf of the appellant.
It is, in the alternative, contended that, even if the expression "regulation of house accommodation" in this entry includes regulation of houses in private occupation, it should not be interpreted as giving Parliament the power even to legislate for eviction of tenants who may have occupied the houses under private arrangement with the owners.
It should be confined to legislation for the purpose of obtaining possession and allotment of such accommodation to military authorities or military officers.
We cannot accept that the, word "regulation" can be so narrowly interpreted as to be confined to allotment only and not to other incidents, such as termination of existing tenancies and eviction of persons in possession of the house accommodation.
The dictionary meaning of the word "regulation" in the Shorter Oxford Dictionary is "the act of regulating" and the word "regulate. is Given the meaning "to control, govern or direct by rule or regulation".
This entry, thus, gives the power to Parliament to pass legislation for the purpose of directing or controlling all house accommodation in cantonment areas.
Clearly, this power to direct or control will include within it all aspects as to who is to make the constructions under what conditions the constructions can be altered, who is to occupy the accommodation and for how long, on what terms it is to be occupied, when and under what circumstances the occupant is to cease to occupy it, and the manner in which the accommodation is to be utilised.
All these are ingre dients of regulation of house accommodation and we see no reason to hold that this word "regulation" has not been used in this wide sense in this entry.
It appears that, in the Government of India Act, 1935, the corresponding entry No. 2 in List I of the Seventh Scheiule to that Act was similar to this entry No. 3 of List I of the Seventh Schedule to the, Constitution, but the expression "including centrol of rents" which is now in entry No. 3 of List I within brackets did not exist.
An argument was sought to be built on it that regulation of house accommodation was not intended to cover control of rents when that expression was used in the corresponding entry in the Government of India Act, and that this expression used in the Constitution should also be interpreted to cover the same field, so that, but for the addition made within brackets, Parliament 449 could not have legislated for control of rents of house accommodation within cantonment areas.
It is further urged that, if the expression "regulation of house accommodation" is interpreted as not including within it regulation or control or rents, it should also be held that it will not include regulation of eviction of private tenants.
This argument is based on the premise that the words "including control of rents" was introduced in entry 3 of List I of the Seventh Schedule to the Constitution for the purpose of en larging the scope, of the legislative authority of Parliament and making it wider than that of the Federal Legislature under the Government of India Act.
Such an assumption is not necessarily justified.
It may be that the words "including the control of rents" were introduced by way of abundant caution or to clarify that the regulation of house accommodation is wide enough to include control of rents.
The addition may have been made so as to concentrate attention on the fact that legislation was needed for control of rents in the situation that existed at the time when the Constitution was passed by the Constituent Assembly.
It has to be remembered that cantonments are intended to be and are, in fact, military enclaves and regulation of occupation of house accommodation in the cantonment areas by parliamentary law is necessary from the point of view of security of military installations in cantoriments and requirements of military authorities and personnel for accommodation in such areas.
Such a purpose ' could only be served by ensuring that Parliament could legislate in respect of house accommodation in cantonment areas in all its aspects, including regulation of grant of leases, ejectment of lessees, and ensuring that the accommodation is available on proper terms as to rents.
On an interpretation of the contents of the entry itself, therefore, we are led to the conclusion that Parliament was given the exclusive power to legislate in respect of house accommodation in cantonment areas for regulating the accommodation in all its aspects.
In this connection, we may refer to three decisions which explain the object of legislation on the subject of rent control.
In Prout vs Hunter(1), Scrutton, L.J., dealing with the legislation during the war in England, held: "Great public feeling was aroused by the exorbitant demands for rent that were made and the ejectments for nonpayment of it, with the result that Parliament passed the Rent Restriction Acts with the two fold object, (1) of preventing the rent from being raised above the prewar standard, and (2) of preventing tenants from being turned out of their houses even if the term for which they had originally taken them had expired.
" (1) 450 In Property Holding Company Limited vs Clark(1), it was held : "There are certain fundamental features of all the Rent Restriction legislation, or at any rate of the legislation from 1920 to 1939.
The two most important objects of policy expressed in it are (1) to protect the tenant from eviction from the house where he is living, except for defined reasons and on defined conditions; (2) to protect him from having to pay more than a fair rent.
The latter object is achieved by the provisions for standard rent with (a) only permitted in creases, (b) the provisions about furniture and attendant liabilities from the landlord to the tenant which would undermine or nullify the standard rent provisions.
The result has been held to be that the Acts operate in rem upon the house and confer on the house itself the quality of ensuring to the tenant a status of irremovability.
In this description of the distinguishing characteristics conferred by statute upon the clouse, the most salient is the tenant 's security of tenure his protection against eviction; although the scope of the statutory policy about a fair rent must also be borne in mind especially in connexion with the provisions relating to furniture, attendance, services and board.
" In Curl vs Angelo and Another(2), Lord Greene, M.R., dealing with Rent Restrictions Act, held : "The courts have had to consider what the over riding purpose and intention of the Acts are, and I cannot put it in a more clear or authoritative way than by using the words of Scrutton, L.J., in Skinner vs Geary ,560), that the object was to protect the person residing in a dwelling house from being turned out of his home." All these three cases clearly show that whenever any legislation is passed relating to control of rents, that legislation can be effective and can serve its purpose only if it also regulates eviction of tenants.
Consequently, when in entry 3 of List I the power is granted to Parliament specifically to legislate on control of rents, that power cannot be effectively exercised unless it is held that Parliament also has the power to regulate eviction of tenants whose rents are to be controlled.
Such power must, therefore, be necessarily read in the expression "regulation of house accommodation".
Of course, it has to be remembered that this power (1) (2) 451 reserved for Parliament is to be exercised in respect of house accommodation situated in cantonment areas only and not other areas the legislative power in respect of which is governed by entries either in List II or in List III.
This view that we are taking is also borne out by the historical background provided by the legislation relating to cantonments and house accommodation in cantonments in India.
Carnduff in his book on "Military and Cantonment Law in India" has indicated how the need for legislating with the object of overcoming difficulties experienced by military officers in obtaining suitable accommodation in cantonments came under consideration, and has stated : "In the early days of the British dominion in India, the camps, stations, and posts of the field army gradually developed into cantonments, where troops were regularly garrisoned.
The areas so occupied were at first set apart exclusively for the military and intended for occupation by them only; but, by degrees, non military persons were admitted land was taken possession of by them, and houses were built under conditions laid down by the Government from time to time.
These conditions were undoubtedly framed with the main object of rendering accommodation always primarily available for the military officers whose duties necessitated their residence within cantonment limits." (p. clxii).
He goes on to relate that a Bill which ultimately became the Contonments Act, 1889, originally contained a set of provisions on the subject, insisting on the prior claim of military officers to occupy houses in cantonments and proposing that disputes as to the rent to be paid and the repairs to be executed should be referred to, and settled by, committees of arbitration.
That part of the Bill was, however, omitted as it evoked considerable opposition and a separate measure was, consequently, taken up, but not till after many years of discussion.
The new Bill was introduced in the Governor General 's Council in 1898, and was passed into law as the Cantonments (House Accommodation) Act II of 1902.
The main provision in this Act was that, on the Act being applied to any cantonment, every house situated therein became liable to appropriation at any time for occupation by a military officer.
It recognised the paramount claim of the military authorities to insist upon houses in cantonments being, where necessary, made primarily available for occupation by the military officers stationed therein.
In addition, a provision was made in section 10 that no house in any cantonment or part of a cantonment was to be occupied for the purposes of a hospital, bank, hotel, shop or school, or by a railway administration, without the previous sanc 452 tion of the General Officer of the Command, given with the concurrence of the Local Government.
This provision, thus, clearly regulated the letting out of houses in a cantonment even for some of the civilian purposes, such as hospital, bank, etc.
The reason obviously was that it was considered inappropriate that a house occupied for such a purpose should be required to be vacated in order to make the house available for military officers.
Keeping the primary object of facilitating availability of house accommodation for military officers in view, even private letting out was, thus, regulated at that earliest stage.
Subsequently came the Cantonments (House Accommodation) Act VI of 1923 which was in force when the Government of India Act was enacted, as well as at the time when the Constitution came in to force.
This Act also contained similar provisions which permitted military authorities to direct an owner to lease out a house to the Central Government, to require the existing occupier to vacate the house and to refrain from letting out any house for purposes of a hospital, school, school hostel, bank, hotel, or shop, or by a railway administration.
a company or firm engaged in trade or business or a club, without the previous sanction of the Officer Commanding the District given with the concurrence of the Commissioner or, in a Province where there are no Commissioners, of the Collector.
This Act also, thus, interfered with and regulated letting out of house accommodation by owners for civilian purposes even though, at the time of letting, the house was not required for any military purpose.
It was in the background of this legislative history that provision was made in the Government of India Act in entry 2 of List I of the Seventh Schedule reserving for the Federal Legislature the power to legislate so as to regulate house accommodation in cantonment areas.
and the same power with further clarification was reserved for Parliament in entry 3 of List I of the Seventh Schedule to the Constitution.
Obviously, it could not be intended that Parliament should not be able to pass a law containing provisions similar to the provisions in these earlier Acts which did interfere with private letting out of house accommodation in cantonment areas by owners for certain purposes.
Another aspect that strengthens our view is that if we were to accept the interpretation sought to be put on behalf of the appellant that the power of Parliament is confined to legislation for the purpose of obtaining house accommodation in cantonment areas for military purposes and excludes legislation in respect of house accommodation not immediately required for military purposes, all that Parliament will be able to do will be to make provision for acquisition or requisition of house accommodation.
On the house accommodation being acquired or requisitioned, it will be available for use by military authorities.
Such power, obviously, could riot be intended to be conferred by entry 3 in List I when 453 the same power is specifically granted concurrently to both Parliament and the State Legislatures under entry 42 of List III of the Seventh Schedule to the Constitution.
On behalf of the appellant, reliance was placed on some decisions of some of the High Courts in support of the proposition that the power of Parliament under entry 3 of List I does not extend to regulating the relationship between landlord and tenant which power vests in the State Legislature under entry 18 of List II.
The first of these cases is A. C. Patel vs Vishwanath Chada(1) where the Bombay High Court was dealing with entry 2 of List I of the Seventh Schedule to the Government of India Act, 1935 and entry 21 of List 11 of that Act.
The Court was concerned with the applicability of the Bombay Rent Restriction Act No. 57 of 1947 to cantonment areas.
Opinion was first expressed that the Rent Restriction Act had been passed by the Provincial Legislature under Entry 21 of List II and reliance was placed on the English interpretation Act to hold that land in that entry would include buildings so as to confer jurisdiction on the Provincial Legislature to legislate in respect of house accommodation.
Then, in considering the effect of Act 57 of 1947, the Court said : "As the preamble of the Act sets out, the Act was passed with a view to the control of rents and repairs of certain premises, of rates of hotels and lodging houses, and (A evictions.
Therefore, the pith and substance of Act LVII of 1947 is to regulate the relation between landlord and tenant by controlling rents which the tenant has got to pay to the landlord and by controlling the right of the landlord to evict his tenant.
Can it be said that when the Provincial Legislature was dealing with these relations between landlord and tenant, it was regulating house accommodation in cantonment areas ? In our opinion, the regulation contemplated by Entry 2 in List I is regulation by the State or by the Government.
Requisitioning of property, acquiring of property, allocation of property, all that would be regulation of house accommodation, but when the Legislature merely deals with relations of landlord and tenant, it is not in any way legislating with regard to house accommodation.
The house accommodation remains the same, but the tenant is protected quae his landlord.
" We have felt considerable doubt whether the power of legislating on relationship between landlord and tenant in respect of house accommodation or buildings would appropriately fall in Entry 21 of List II of the Seventh Schedule to the Government of India (1) I.L.R. 3SupCI69 15 , or in the corresponding Entry 18 of List II of the Seventh Schedule to the Constitution.
These Entries permit legislation in respect of land and explain the scope by equating it with rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents.
It is to be noted that the relation of landlord and tenant is mentioned as being included in land tenures and the expression "land tenures" would not, in our opinion, appropriately cover tenancy of buildings or of house accommodation.
That expression is only used with reference to relationship between landlord and tenant in respect of vacant lands.
In fact, leases in respect of non agricultural property are dealt with in the Transfer of Property Act and would much more appropriately fall within the scope of Entry 8 of List III in the seventh Schedule to the Government of India Act read with Entry 10 in the same List, or within the scope of Entry 6 of List III in the Seventh Schedule to the Constitution read with Entry 7 in the same List.
Leases and all rights governed by leases, including the termination of leases and eviction from pro perty leased, would be covered by the field of transfer of property and contracts relating thereto.
However, it is not necessary for us to express any definite opinion in this case on this point because of our view that the relationship of landlord and tenant in respect of house accommodation situated in cantonment areas is clearly covered by the Entries in List I.
In the Constitution, the effect of Entry 3 of List I is that Parliament has exclusive power to make laws with respect to the matters contained in that Entry, notwithstanding the fact that a similar power may also be found in any Entry in List 11 or List III.
Article 246 of the Constitution confers exclusive power on Parliament to make laws with respect to any of the matters enumerated in List 1, notwithstanding the concurrent power of Parliament and the State Legislature, or the exclusive power of the State Legislature in Lists III and 11 respectively.
The general power of legislating in respect of relationship between landlord and tenant exercisable by a State Legislature either under Entry 18 of List II or Entries 6 and 7 of List III is subject to the overriding power of Parliament in respect of matters in List 1, so that the effect of Entry 3 of List I is that, on the subject of relationship between landlord and tenant insofar as it arises in respect of house accommodation situated in cantonment areas, Parliament alone can legislate and not the State Legislatures.
The submission made that this interpretation will lead to a conflict between the powers conferred on the various Legislatures in Lists I, II and III has also no force, because the reservation of power for Parliament for the limited purpose of legislating in 'respect of cantonment area only amounts to exclusion of this part of the legislative power from the general powers conferred on State Legislatures in the other two Lists.
This kind of exclusion is not confined only to legislation in respect of house accommodation in 455 cantonment areas.
The same Entry gives Parliament jurisdiction to make provision by legislation for local self government in cantonment areas which is clearly a curtailment of the general power of the State Legislatures to make provision for local self government in all areas of the State under Entry 5 of List R.
That Entry 5 does not specifically exclude cantonment areas and, but for Entry 3 of List I, the State Legislature would be competent to make provision for local government even in cantonment areas.
Similarly, power of the State Legislature to legislate in respect of : (i) education, including universities, under Entry 1 1 of List 11 is made subject to the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III; (ii) regulation of mines and mineral development in Entry 23 of List II is made subject to the provisions of List I with respect to regulation and development under the control of the Union; (iii) industries in Entry 24 of List 11 is made subject to the provisions of Entries 7 and 52 of List 1; (iv) trade and commerce within the State in Entry 26 of List II is made subject to the provisions of Entry 33 of List III; (v) production, supply and distribution of goods under Entry 27 of List 11 is made subject to the provisions of Entry 33 of List III; and (vi) theatres and dramatic performances; cinemas in Entry 33 of List 11 is made subject to the provisions of Entry 60 of List I. Thus, the Constitution itself has specifically put down entries in List II in which the power is expressed in general terms but is made subject to the provisions of entries in either List I or List III.
In these circumstances, no anomaly arises in holding that the exclusive power of Parliament for regulation of house accommodation including control of rents in cantonment areas has the effect of making the legislative powers conferred by Lists 11 and III subject to this power of Parliament.
In this view, we are unable to affirm the decision of the Bombay High Court in A. C. Patel 's case(1) which is based on the interpretation that Entry 2 in List I of the Seventh Schedule to the Government of India Act only permitted laws to be made for requisitioning of property, acquiring of property and allocation of property only.
The same High Court, in a subsequent case in F. E. Darukhanawalla vs Khemchand Lalchand(2), placed the same interpretation on Entry 3 of List I of the Seventh Schedule to the Constitution.
That decision was also based on the same interpretation of the scope of regulation of house accommodation as was accepted by that Court in the earlier case.
The Nagpur High Court in Kewalchand vs Dashrathlal(3) pro ceeded on the assumption that the decision in the case of A. C. Patel vs Vishwanath Chada(1) correctly defined the scope of Entry (1) I.L.R. (2) I.L.R. (3) I.L.R. 3 Sup.
CI 69 16.
456 2 in List I of the Seventh Schedule to the Government of India Act, and considered the narrow question whether the relationship of landlord and tenant specifically mentioned in Entry 21 in List It of that Act covered the requirement of permission to serve a notice for eviction in regulating the relation of landlord and tenant and fell within the scope of Entry 21 in List II or in Entry 2 in List I of that Act.
The Court held that it substantially fell in Entry 21 in List II and not in Entry 2 in List I.
That Court did not consider it necessary to express any opinion on the question whether the expression "regulating of house accommodation" included something besides what Chagla, C.J., had said was its ambit in the case of A. C. Patel vs Vishwanath Chada(1), but expressed the opinion that the expression could not be stretched to include the aspect of the relation of landlord and tenant involved in that particular case.
It is clear that, in, that case also, a narrow interpretation of the expression "regulation of house accommodation" was accepted, because it appears that there was no detailed discussion of the full scope of that expression.
Similar is the decision of the Patna High Court in Babu Jagtanand vs Sri Satyanarayanji and Lakshmiji Through the Shebait and Manager Jamuna Das (2) .
In fact, this last case merely followed the decision a the Bombay High Court in the case of F. E. Darukhanawalla vs Khemchand Lalchand(3).
On the other hand, the Rajasthan High Court in Nawal Mal vs Nathu Lal(4) held that the power of the State Legislature to legislate in respect of landlord and tenant of buildings is to be found in Entries 6, 7 and 13 of List III of the Seventh Schedule to the Constitution and not in Entry 18 of List 11, and that that power was circumscribed by the exclusive power of Parliament to legislate on the same_subject under Entry 3 of List I.
That is also the view which the Calcutta High Court has taken in the judgment in appeal before us.
We think that the decision given by the Calcutta High Court is correct and must be upheld.
The appeal fails and is dismissed with costs payable to plaintiff respondent only.
R.K.P.S. (1) I.L. R. (2) I.L.R. 40 Patna 625.
(3) I.L.R. (4) I.L.R. R.K.P.S Appeal dismissed.

summary/full:
The first respondent, who was the owner of certain premises situated within the cantonment area of Barrackpore filed a suit for the appellant 's eviction from the premises.
In the plaint it was claimed that the appellant was not entitled to the protection of the West Bengal Premises Tenancy Act 12 of 1956, the regulation of house accommodation including control of rents being a subject in Entry 3 of List I of the Seventh Schedule to the Constitution, the State Legislature could not competently enact a law on the same subject for Cantonment areas and the extension of the Act to the cantonment area was ultra vires and void.
Upon the Trial Court making a reference under section 113 C.P.C. to the High Court for a decision of the constitutional question, that court upheld the first respondents contention.
In appeal to this Court it was contended that the High Court was in error in holding that the field of legislation covered by the Act, which is primarily concerned with control of rents and eviction of tenants, is included in the expression "regulation of house accommodation in cantonment areas" used in Entry 3 List I, regulation of house accommodation will not include within it laws or rules on the subject of relationship of landlord and tenant of buildings situated in the cantonment areas.
On the other hand according to the appellant, legislation on this subject can be made either under entry 18 of List 11, or entries 6, 7 and 13 of List III, so that a State Legislature is competent to legislate and regulate relationship between landlord and tenant in the cantonment areas; that under Entry 3 List I Parliament is empowered to legislate in respect of house accommodation situated in cantonment areas only to the extent that house accommodation is needed for military purposes and laws are required for requisitioning or otherwise obtaining possession of that accommodation for such purposes.
The alternative submission made was that regulation of house accommodation by parliamentary law should be confined to houses acquired, requisitioned or allotted for military purposes.
Entry 3, List I, according to the appellant, should not be read as giving Parliament the power to legislate on the relationship of landlord and tenant in respect of houses situated in cantonment areas if such houses are let out privately by a private owner to his tenant and have nothing at all to do with the requirements of the military.
HELD : Dismissing the appeal, When power is granted to Parliament under Entry 3 List I to make laws for the regulation of house accommodation in cantonment areas, there are no qualifying words to indicate that the house accommodation, which is to be subject to such legislation, must be accommodation 444 required for military purposes, or must be accommodation that has already been acquired, requisitioned or allotted to the military.
[447B] When legislating in respect of local self government in cantonment areas, it is obvious that Parliament will have to legislate for the entire cantonment area including portions of it which may be in possession of civilians and not military authorities or military officers.
Similarly, the powers of the cantonment authorities, which could be granted by legislation by Parliament, cannot be confined to those areas or buildings which are in actual possession of military authorities or officers and must be in respect of the entire cantonment area including those buildings and lands which may be in actual ownership as well as occupation of civilians.
In these circumstances, there is no reason to narrow down the scope of legislation on regulation of house accommodation and confine it to houses which are required or are actually in possession of military authorities or military officers.
[447F H] The word "regulation" cannot be so narrowly interpreted as to be confined to allotment only and not to other incidents, such as termination of existing tenancies and eviction of persons in Possession of the house accommodation.
Entry 3 List I gives power to Parliament to pass legislation for the purpose of directing or controlling all house accommodation in cantonment areas.
[448 D] Prout vs Hunter, , Property Holding Co. Ltd. vs Clark, and Curl vs Angelo & Anr. , referred to.
In the Constitution, the effect of Entry 3 of List I is that Parliament has exclusive power to make laws with respect to the matters contained in that Entry, notwithstanding the fact that a similar power may also be found in any Entry in List 11 or List 111.
Article 246 of the Constitution confers exclusive power on Parliament to make laws with respect to and of the matters enumerated in List 1, notwithstanding the concurrent power of Parliament and the State Legislature, or the exclusive power of the State Legislature in Lists III and 11 respectively.
The general power of legislating in respect of relationship between landlord and tenant exercisable by a State Legislature either under Entry 18 of List 11 or Entries 6 and 7 of List 111 is subject to the overriding power of Parliament in respect of matters in List 1, so that the effect of Entry 3 of List I is that, on the subject of relationship between landlord and tenant insofar as it arises in respect of house accommodation situated in cantonment areas, Parliament alone can legislate and not the State Legislatures.
[454E G] A.C. Patel vs Vishwanath Chada, I.L.R. , F.E. Darukhanawalla vs Khemchand Lalchand, I.L.R. [1954] Bom.
544, Kewalchand vs Dashrathlal, I.L.R. and Babu Jagtanand vs Sri Satyanarayanji and Lakshmiji through the Sheba it and Manager Jamuna Das, I.L.R. 40 Pit.
625, disapproved.
Nawal Mal vs Nathu Lal, I.L.R. , approved.