judgement:
iminal Appeal No 64 of 1969.
Appeal by special leave from the judgment and order dated December 10, 1968 of the Punjab and Haryana High Court in.
Criminal Revision No. 1200 of 1967.
R. L. Kohli, for the appellant.
V. C. Mahajan and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by Khanna, J.
Ishar Das appellant was convicted by the judicial magistrate 1st class Patiala for an offence under section 7(1) of the (Act No. 37 of 1954) read with section 16(1) (a) (i) of that Act and was ordered to furnish bond under section 4 of the .
Bedi, J. of the Punjab and Haryana High Court during the course of the inspection of the Court of trial magistrate, took the view that an improper order had been made in the above case by the magistrate.
The High Court thereupon of its own motion directed that a notice be issued to the appellant.
The case was thereafter posted before Bedi, J.
The learned judge referred to the fact that a minimum sentence of imprisonment for a period of six months and a fine of Rs. 1,000 had been prescribed by section 16 of the .
It was also observed that offenses under the were against the public and called for deterrent punishment.
Order was consequently made that the appellant instead of being released on his furnishing a bond, should be sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs. 1,000.
In default of payment of fine.
the appellant was ordered to undergo simple imprisonment for a further period of one and a half month.
The appellant thereafter filed this appeal by special leave to this Court.
At the time the leave was granted.
it was ordered that the appeal would be limited to the question of sentence only.
The prosecution case is that on August 1, 1966 the Food Inspector Patiala took a sample of two cups of ice cream from the appellant from Phul Cinema canteen on payment of three rupees.
Part of the ice cream was sent for analysis to Public Analyst Chandigarh.
The Analyst reported that the ice cream was adulterated, being deficient in milk fat contents to the extent of 77 per cent and total solid contents to the, extent of 7 per cent.
The appellant was thereafter prosecuted on the allegation that he had committed an offence under section 7(1) of the read with section 16 (1 ) (a) (i) of that 314 Act.
Charge was framed on that count against the appellant and he pleaded guilty to the same.
The trial magistrate took the view that the appellant, who was aged about 20 years, was in a repentant mood.
The appellant was, in the circumstances, directed to furnish bond under section 4 of the .
The bond was thereafter furnished by the appellant.
On revision, the sentence was altered by the High Court as mentioned above.
In appeal Mr. Kohli on behalf of the appellant has referred to the matriculation certificate which was produced on behalf of the appellant and according to which the date of birth of the appellant was May 8, 1947.
It is argued that as the age of the appellant on the date of his conviction by the trial magistrate was less than 20 years, the appellant was rightly given the benefit of the provisions of the .
The High Court, according to the learned counsel, was in error in awarding the sentence of imprisonment and fine to the appellant.
As against that Mr. Mahajan on behalf of the respondent has contended that the provisions of the cannot be invoked by an accused convicted of an offence under section 7 read with section 16 of the Prevention of Food Adultera tion Act.
Mr. Mahajan has not disputed that the age of the accused was less than 20 years on the date of his conviction by the trial magistrate, but, according to the learned counsel, that fact could make no difference.
There is, in our opinion, considerable force in the stand taken on behalf of the appellant by his learned counsel and we find ourselves unable to accede to the submission made on behalf of the respondent State.
The received ,the assent of the President on May 16, 1958 and was published in the Gazette of India dated May 19, 1958.
According to subsection (3) of section 1 of that Act, it shall come into force in a State on such date as the State Government may, by notification in the Official.
Gazette, appoint, and different dates may be appointed for different parts of the State.
The fact that the Act was in force in the State of Punjab before the sample of ice cream was taken from the appellant has not been disputed before us. 'Section 3 of the Act gives power to the court to release certain offenders after admonition.
According to that section, where any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code or any offence punishable with imprisonment for not more than two years, or with fine, or with both under the Indian Penal Code or any other law, and no previous conviction is proved against him and the Court by which the person is found guilty is of opinion that, .having regard to the circumstances of the case including the nature 315 of the offence and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition.
The relevant part of sub section (1) of section 4 and sub section (1) of section 6 of the Act read as under : "4(1) When any person is found guilty of having committed on offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behavior." "6(1) When any person under twenty one years of age is found guilty of having committed an, offence punishable with imprisonment (but not with imprisonment for life), the Court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under section 3 or section 4, and if the Court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.
" The , as observed by Subba Rao, J. (as he then was) speaking for the majority in the case of Rattan Lal vs State of Punjab(1), is a milestone in the progress of the modem liberal trend of reform in the field of penology.
It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him.
Broadly stated, the Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence.
While in the case of offenders who are above the (1) ; 316 age of 21 years absolute discretion is given to the court to release ,them after admonition or on probation of good conduct, subject to the conditions laid down in the appropriate provisions of the Act, in the case of offenders below the age of 21 years, an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that, having regard to the circumstances of the case, including the nature of the offence and the character of the offenders, it is not desirable to deal with them under sections 3 and 4 of the Act.
It is Manifest from plain reading of sub section (1 ) of section 4 of the Act that it makes no distinction between persons of the age of more than 21 years and those of the age of less than 21 years.
On the contrary, the said sub section is applicable to persons of all ages subject to certain conditions which have been specified therein.
Once those conditions are fulfilled and the ,other formalities which are mentioned in section 4 are complied with, power is given to the court to release the accused on probation of good conduct.
Section 6 of the Act deals specifically with persons under twenty one years of age convicted by a court for an offence punishable with imprisonment other than imprisonment for life.
In such a case an injunction is issued to the court not to sentence the young offender to imprisonment, unless the court is of the view that having regard to the circumstances of the case including the nature of the offence and the character of the offender (it would not be desirable to release him after admonition under section 3 or on probation of good conduct under section 4 of the Act.
Sub section (1) of section 16 of the provides the punishment which may be awarded to a person found guilty of the various offenses under that Act.
According to the above sub section, such a person, in addition to a penalty to which he may be liable under section 6, with which we are not concerned, be punishable with imprisonment for a term which shall not be less than six months but which may extend to six years and with fine which shall not be less than one thousand rupees.
There follows a proviso, according to which the court May, in case of some of the offenses under the Act, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or of fine of less than one thousand rupees or of both imprisonment for a term of less than six months and fine of less than one thousand rupees.
The question which arises for determination is whether despite the fact that a minimum sentence of imprisonment for a term of six months and a fine of rupees one thousand has been prescribed .by the legislature for a person found guilty of the offence under 317 the , the court can resort to the provisions of the .
In this respect we find that sub section (1) of section 4 of the contains the words "notwithstanding anything contained in any other law for the time being in force".
The above non obstante clause points to the conclusion that the provisions of section 4 of the would have overriding effect and shall prevail if the other conditions prescribed are fulfilled.
Those conditions are (1) the accused is found guilty of having committed an offence not punishable with death or imprisonment for life, (2) the court finding him guilty is of the opinion that having regard to the circumstances of the case, including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, and (3) the accused in such an event enters into a bond with or without sureties to appear and receive sentence when called upon during such period not exceeding three years as the court may direct and, in the meantime, to keep the peace and be of good behavior.
Sub section (1) of section 6 of the above mentioned Act, as stated earlier, imposes a duty upon the court when it finds a person under 21 years of age, guilty of an offence punishable with imprisonment other than imprisonment for life, not to sentence him to imprisonment unless the court is satisfied that, having regard to the circumstances of the case, including the nature of the offence and the character of the offender, it would not be desirable to deal with him under sections 3 or 4 of the Act but to award a sentence of imprisonment to him.
The under lying object of the above provisions obviously is that an accused person should be given a chance of reformation which he would lose in case he is incarcerated in prison and associates with hardened criminals.
So far as persons who are less than 21 years of age are concerned, special provisions have been enacted to prevent their confinement in jail at young age with a view to obviate the possibility of their being subjected to the pernicious influence of hardened criminals.
It has accordingly been enacted that in the case of a person who is less than 21 years of age and is convicted for an offence not punishable with imprisonment for life, he shall not be sentenced to imprisonment unless there exist reasons which justify such a course.
Such reasons have to be recorded in writing.
According to section 18 of the , the aforesaid Act shall not affect the provision of sub section (2) of section 5 of the Prevention of Corruption Act, 1947 (Act 2 of 1947).
The last mentioned provision, namely, sub section (2) of section 5 of the Prevention of Corruption Act, prescribes, in the absence of special reasons, a minimum sentence of imprisonment for a term of not less than one year for those convicted 318 under section 5 of that Act.
If the object of the legislature was that the provisions of the should not apply to all cases where a minimum sentence of imprisonment is prescribed by the statute, there was no reason to specify subsection (2) of section 5 of the Prevention of Corruption Act in section 18 of the .
The fact that out of the various offenses for which the minimum sentence is prescribed, only the offence under sub section (2) of section 5 of the Prevention of Corruption Act has been mentioned in section 18 of the and not the other offenses for which the minimum sentence is prescribed, shows that in case of such other offenses the provisions of can be invoked.
The provisions of , in our opinion, point to the conclusion that their operation is not excluded in the case of persons found guilty of offenses under the .
Assuming that there was reasonable doubt or ambiguity, the principle to be applied in Construing a penal act is that such doubt or ambiguity should be resolved in favour of the person who would be liable to the penalty (see Maxwell on Interpretation of Statutes, p. 239, 12th Edition).
It ha,,; also to be borne in mind that the was enacted in 1958 subsequent to the enactment in 1954 of the .
As the legislature enacted the despite the existence on the statute book of the , the operation of the provisions of cannot be whittled down or circumscribed because of the provisions of the earlier enactment, viz.
Indeed, as mentioned earlier, the non obstante clause in section 4 of the is a clear manifestation of the intention of the legislature that the provisions of the would have effect notwithstanding any other law for the time being in force.
We may also in this context refer to the decision of this Court in the case of Ramji Missir vs State of Bihar(1) wherein this Court while dealing with the observed that its beneficial provision,, should receive wide interpretation and should not be read in a restricted sense.
Adulteration of food is a menace to public health.
The has been enacted with the aim of eradicating that anti social evil and for ensuring purity in the articles of food.
In view of the above object of the Act and the intention of the legislature as revealed by the fact that a minimum sentence of imprisonment for a period of six months (1) [1962] Suppl.
2 S.C.,R. 745.
319 and a fine of rupees one thousand has been prescribed, the courts should not lightly resort to the provisions of the in the case of persons above, 21 years of age found guilty of offenses under the .
As regards persons under 21 years of age, however, the policy of the law appears to be that such a person in spite of his conviction under the , should not be deprived of the advantage of which is a beneficent measure and reflects and incorporates the modern approach and latest trend in penology.
Mr. Mahajan has argued that if the trial magistrate took the view that the accused appellant in view of Ms age, should not be sentenced to undergo imprisonment, the learned magistrate should still have imposed the sentence of fine as prescribed by subsection (1) of section 16 of the Act.
In this respect we are of the opinion that a sentence of fine also carries with it the consequence of imprisonment in case the accused fails to pay the fine.
As the object of is to avoid imprisonment of the person covered by the provisions of that Act, the said object cannot be set at naught by imposing a sentence of fine which would necessarily entail imprisonment in case there is a default in payment of fine.
The High Court in the present case did not consider the pro visions of the and its attention does not appear to, have been invited to the mandatory provisions of section 6 of that Act.
In view of the fact that the accused was less than 20 years of age and appeared to be in a repentant mood, the trial court took action under section 4 of the .
The High Court, in our view, was in error in interfering with the above order of the trial magistrate.
We, therefore, accept the appeal, set aside the order of the High Court and restore that of the trial magistrate.
V.P.S. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The appellant, who was less than 20 years was convicted for an offence under section 7(1) of the , and was ordered to furnish a bond under section 4 of the .
The High Court revised the sentence, because section 16 of the Prescribed a minimum sentence of imprisonment for 6 months and a fine of Rs. 1000.
Allowing the appeal to this Court, HELD : Section 4(1) of the contains the non obstante clause notwithstanding anything contained in any other law for the time being in force, and hence the section would have overriding effect and shall prevail if its other conditions are fulfilled; especially when the was enacted in 1958 subsequent to the enactment in 1954 of the .
[317 A C; 318 D E] According to section 18 of the , that Act shall not affect section 5(2) of the Prevention of Corruption Act which also prescribes a minimum sentence of imprisonment.
The fact that only one offence for which a minimum sentence of imprisonment is prescribed, has been specified shows that in the case of other such offenses, the provisions of the can be invoked [317H; 318 A C] Assuming there is some ambiguity, the principle to be applied in construing a penal statute is that such doubt should be resolved in favour of the person who would be liable to the penalty.
[318 D] Adulteration of food is a menace to public health and the has been enacted to eradicate the evil.
Therefore, courts should not lightly resort to the provisions of the probation of Offenders Act in the case of persons above 21 years of age; but the Act makes a distinction between offenders below 21 years and those above that age.
As regards person under 21 years, the policy of the law is that such a person, even in the case of conviction under the , should not be deprived of the advantage of the which is a beneficent measure and reflects and incorporates the modern approach and latest trend in penology.
[318 G H; 319 A C] As the object of the is to avoid imprisonment of a person covered by its provision, ,, that object cannot be set at naught by imposing a sentence of fine which would entail imprisonment in case of default.
[319 D] Rattan Lal vs State of Punjab ; and Ramji Missir vs State of Bihar [1962] Supp. 2 S.C.R. 745, referred to. 313


judgement:
o. 2 of 1972.
Appeal by Special Leave from the judgment and order dated April 13, 1970 of.
the Allahabad High Court in Special Appeal No. 1074 of 1968.
M. C. Setalvad, P. N. Tiwari J. B. Dadachanji and Co. for the appellant.
R. K. Garg and section C. Agarwal, for the respondents.
The Judgment of the Court was delivered by Mathew, J.
The appellant filed a writ petition before the High Court of Allahabad, Lucknow Bench, challenging the validity of a resolution passed on 12 11 1967 by the Managing Committee of the Jai Narain College, Lucknow, formerly known as Kanyakubja Degree College, an associated college of the Lucknow University, terminating his services, and praying for issue of an appropriate writ or order quashing the resolution.
A learned single judge of that Court, finding that in terminating the services, the Managing Committee acted in violation of principles of natural justice, quashed the resolution and allowed the writ petition.
The Managing Committee appealed against the order.
A Division Bench of the High Court found that the relationship between the College and the appellant was that of master and servant and that even if the service of the appellant has been terminated in breach of the audi alteram partem rule of natural justice, the remedy of the appellant was to file a suit for damages and not to apply under Article 226 of the Constitution for a writ 322 or order in the nature of certiorari and that in fact no principle of natural justice was violated by terminating the services of the appellant as the appellant was given an opportunity of submitting his explanation to the charges.
The Bench, therefore, set aside the order of the learned single judge and dismissed the writ petition.
It is from this judgment that the appeal has been preferred by special leave.
The appellant joined the service of the college as lecturer in 1946.
He was promoted to the post of Head of the Department of Zoology in 1959.
On the basis of certain complaints against him received by the Manager of the College, charges were framed against him and his explanation was called for.
He submitted an explanation.
The explanation was found not to be satisfactory and the Managing Committee passed a resolution on 12 11 1967 for removal of the appellant from service.
As already stated, this was the resolution challenged by the appellant in the writ petition.
On behalf of the appellant, Mr. M. C. Setalvad, contended that the appellant had a statutory status, that his services were terminated in violation of the provisions of statutes passed under the.
Lucknow University Act, 1920 and, therefore the High Court was wrong in its conclusions that no application for a writ or order in the nature of certiorari would lie.
He further submitted that the appellant was not given a reasonable opportunity of defending himself against the charges.
it is well settled that, when there is a purported termination of a contract of service, a declaration that the contract of service still subsisted would not be made in the absence of special circumstances, because of the principle that Courts do not ordinarily enforce specific performance of contracts of service [see Executive Committee of U.P. State Warehousing Corporation Ltd. vs Chandra Kiran Tyagi(1)] and Indian Airlines Corporation vs Sukhdeo Rai( ').
If the master rightfully ends the contract, ,there can be no complaint.
If the master wrongfully ends the contract, then the servant can pursue a claim for damages.
So even if the master wrongfully dismisses the servant in breach of the contract, the employment is effectively terminated.
In Ridge vs Baldwin(3), Lord Reid said in his speech : "The law regarding master and servant is not in doubt.
There cannot be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none.
But if he does so in a manner not (1) ; (2) ; (3) (1965) Weekly Law Reports, Vol 1, 79.
323 warranted by the contract he, must pay damages for breach of contract.
So the question in a pure case of master and servant does n ot at all depend on whether the master has heard the servant in his own defence; it depends on whether the facts emerging at the trial prove breach of contract. 'But this kind of case can resemble dismissal from an office where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with its, ser vants, or the grounds on which it can dismiss them." A teacher appointed by a University constituted under a statute was held not to be holding an office or status in Vidyodaya University vs Silva(1).
In that case the services of the respondent was brought to an end by a resolution of the University Council set up under the statute establishing the University.
The resolution was admittedly passed without hearing the teacher.
Under the statute, the Council was empowered to institute professorships and every appointment was to be by an agreement in writing between the University and the professor and was to be for such period and on such terms as the Council might resolve.
Under section 18(e) of the Act, the Council had the power to dismiss an officer or a teacher on grounds of incapacity or conduct which, in the opinion of not less than two third of the members of the Council, rendered him unfit to be an officer or a teacher of the University.
Such a resolution with the requisite majority was passed.
The Act gave no right to the teacher of being heard by the Council.
The Privy Council held that the mere circumstances that the University was established by the statute and was regulated by statutory enactments contained in the Act did not mean that the contracts of employment made with teachers, though subject to section 18(e), were other than ordinary contracts of master and servant and, therefore, the procedure of being heard invoked by the respondent was not available to him and no writ could be issued against the University.
The decision in this case has been criticised by academic .writers (see Jaffe, English and American Judges as Law Makers, p. 26; S.A. de Smith, Judicial Review of Administrative Action, pp. 214 215; G. Ganz, Public Law Principles applicable to Dismissal from Employment, Modem Law Review, Vol.
30 pp. 288291).
Recently the House of Lords considered the question in Malloch vs Aberdeen Corporation (2) .
That case concerned a teacher in Scotland who was dismissed by the Education Committee for the reason that he was not registered in terms of paragraph 2 of schedule 2 to the Teachers ' (Education, Training and Registration) (Scotland) Regulations, 1967, made under section (1) [1964] 3 All F.R. 865.
(2) 324 2(1) of the Education (Scotland) Act, 1962, and the amending regulation 4(2) of the Schools (Scotland) Code, 1956.
In an action against the education authority, he claimed that the purported dismissal was a nullity in that it was contrary to natural, justice since he had not been given a hearing.
It was held (Lord Morris and Lord Guest dissenting) that the teacher had a right to be heard before he was dismissed as according to the majority he was holding an office.
In the course of his speech, Lord Wilberforce made certain observations "A comparative list of situations in which persons have been held entitled or not entitled to a hearing, or to observation of rules of natural justice, according to the master and servant test, looks illogical and even bizare.
A specialist surgeon is denied protection which is given to hospital doctor; a University professor, as a servant, has been denied the right to be heard, a dock laborer and an undergraduate have been granted it; examples can be multiplied [see Barber vs Manchester Regional Hospital Board , Palmar vs Inverness Hospitals Board of Management, [1963], $.C. 311, Vidyodaya University Council vs Silva , Vine vs National Dock Labour Board , Glynn vs Keele University One may accept that if there are relationships in which all requirements of the observance of rules of natural justice are excluded (and I do not wish to assure that this is inevitably so), these must be confined to what have been called "pure master and servant cases", which I take to Mean cases in which there is no element of public employment or service, no support by statute, nothing in the nature of an office or a status which is capable of protection.
If any of these elements exist, then, in my opinion, whatever the terminology used, and even though in some inter parties aspects the relationship may be called that of master and servant, there may be essential procedural requirements to be observed, and failure to observe them may result in a dismissal being declared to be void.
" and then he said as regards the decision in VidyodaYa University, Council vs Silva(1) : "It would not be necessary or appropriate to disagree with the procedural or even the factual basis on which this decision rests : but I must confess that I (1) 325 could not follow it in this country in so far as it involves a denial of any remedy of administrative law to analogous employments.
Statutory provisions similar to those on which the employment rested would tend to show, to my mind, in England or in Scotland, that it was one of a sufficiently public character, or one partaking sufficiently of the natu re of an office, to attract appropriate remedies of administrative law.
" Whether the decision in Vidyodaya University Council vs Silva(1) is correct or not, in this.
case, we think there was no element of public employment, nothing in the nature of an office or status which is capable of protection.
In section R. Tewari vs District Board, Agra(2), this Court formulated the exceptions to the general rule that when there is a termination of a contract of service, a declaration that the contract of service still subsisted would not be made, by saying : "But this rule is subject to certain well recognised exceptions.
It is open to the Courts, in an appropriate case, to declare that a public servant who is dismissed from service in contravention of Article 311 continues to remain in service, even though by so doing the State is in effect forced to continue to employ the servant whom it does not desire to employ.
Similarly, under the industrial law, jurisdiction of the labour and industrial tribunals to compel the employer to employ a worker, whom he does not desire to employ, is recognised.
The Courts are also invested with the power to declare invalid the act of a statutory body, if by doing the act, the body has acted in breach of a mandatory obligation imposed by the statute, even if by making the declaration the body is compelled to do something which it does not desire to do." Mr. Setalvad contended that since the college in question is affiliated to a statutory body, namely, the University of Lucknow,and is governed by the relevant statutes and ordinances framed under the provisions of Lucknow University Act, 1920, any violation of the statute or the ordinance in the matter of terminating the services of a teacher would attract the jurisdiction of the High Court under Article 226 of the Constitution as statutes and ordinances have the force of law.
In support of this, counsel relied upon the decision of this Court in Prabhakar Ramakrishna Jodh vs A. L. Pande and another(").
The appellant before this Court in that case was a teacher in a college affiliated to the University of Saugar and managed by the Governing Body (1) (2) ; (3) 326 established under the provisions of the relevant ordinance made under the University of Saugar Act.
Certain charges were framed against the appellant by the Principal of the College and he was asked to submit his explanation.
The appellant in his explanation denied all the charges and requested for particulars on which one of the charges was based.
The particulars were not supplied and the Governing Body terminated his services without holding any enquiry.
The appellant moved the High Court under Article 226 of the Constitution for a writ quashing the order of the Governing Body and for his reinstatement.
He contended that the Governing Body had made the order in violation of the provisions of Ordinance 20, otherwise called the 'College Code, framed under section 32 of the University of Saugar Act read with section 6 (6) of that Act.
Clause 8 (vi (a) of the College Code provided that the Governing Body of the college shall not terminate the services of a confirmed teacher without holding an enquiry and without giving him an opportunity of defending himself.
The High Court held that the conditions of service of the appellant were governed not by the 'College Code ' but by the contract made between the Governing Body and the appellant under clause 7 of the College Cod& which stated that all teachers of the college shall be appointed under a written contract in the form prescribed , that the provisions of the 'College Code ' were merely conditions prescribed for affiliation of colleges and that no legal rights were created by the 'College Code ' in favour of the teachers of the affiliated colleges as against the Governing Body.
The High Court, therefore, dismissed the petition.
In appeal to this Court it was held that the 'College Code ' had the force of law and that it not merely regulated the legal relationship between the affiliated colleges and the University but also conferred legal rights on the teachers of affiliated ,colleges.
The Court further said "It is true that Clause 7 of the Ordinance provides that all teachers of affiliated colleges shall be appointed on a written contract in the form prescribed in Sch.
A but that does not mean that teachers have merely a contractual remedy against the Governing Body of the College.
On the other hand, we are of opinion that the provisions of Clause 8 of the Ordinance relating to security of the tenure of teachers are part and parcel of the teachers ' service conditions. . " When once this Court came to the conclusion that the 'College Code ' had the force of law and conferred rights on the teachers of affiliated colleges, the right to challenge the order terminating the services of the appellant, passed in violation of clause 8 (vi) (a) of the 'College Code ' in a proceeding under Article 226 327 followed 'as the night the day ' and the fact that the appellant had entered into a contract was considered as immaterial.
In the case in hand, the position is entirely different.
The relevant statutes governing this case are statutes 151, 152 and 153, framed under the provisions of the Lucknow University Act, 1920.
Statute 151 provides that teachers of an Associated College including the ' principal shall be appointed on written contract and that the contract shall inter alia provide the conditions mentioned therein in addition to such other conditions not inconsistent with the Act and the statutes as an Associated College may include in its own form of agreement.
Then the conditions as regards salary, age of retirement, etc., are enumerated.
The statute then goes on to specify the grounds on which a teacher 's services can be terminated.
Statute 152 states that the form of agreement to be adopted by each college shall be approved by the Executive Council before it is put in force.
Statute 153 provides for a form of agreement which shall serve as a model.
It may be noted that statute 151 does not provide for any particular procedure for dismissal or removal of a teacher for being incorporated in the contract.
Nor does the model form of contract lay down any particular procedure for that purpose.
The appellant had entered into an agreement when he was employed in the college.
Clause 5 of the agreement provided that : "the period of probation shall be one year unless extended by the Managing Committee and the College may at any time during the said period of probation put an end to this engagement, or if service shall continue beyond the said term, at any time thereafter, dispense with the services of the said Lecturer without notice, if the Managing Committee of the said College is satisfied that it is necessary to remove the said Lec turer for misconduct, insubordination or habitual neglect of duty on the part of the said Lecturer 'or in case any of the conditions herein specified have been broken by the said Lecturer provided that an oppor tunity is given to him by the said Managing Committee to give his explanation before a decision is arrived at.
" On a plain reading statute 151, it is clear that it only provides that the terms and conditions mentioned therein must be incorporated in the contract to be entered into between the college and the teacher concerned.
It does not say that the terms and conditions have any legal force, until and unless they are embodied in an agreement.
To put it in other words, the terms and conditions of service mentioned in Statute 151 have proprio 328 vigore no force of law.
They become terms and conditions of service only by virtue of their being incorporated in the contract.
Without the contract, they have no vitality and can confer no legal rights.
Whereas in the case of Prabhakar Ramakrishna Jodh vs A. L. Pande and another(1), the terms and conditions of service embodied in clause 8 (vi) (a) of the 'College Code ' had the force of law apart from the contract and conferred rights on the appellant there, here the terms and conditions mentioned in Statute 151 have no efficacy, unless they are incorporated in a contract.
Therefore, appellant cannot found a cause of action on any breach of the law but only on the breach of the contract.
As already indicated, Statute 151 does not lay down any procedure for removal of a teacher to be incorporated in the contract; So, clause 5 of the contract can, in no event, have even a statutory flavor and for its breach, the appellant 's remedy lay elsewhere.
Besides, in order that the third exception to the general rule that no writ will lie to quash an order terminating a contract of service, albeit illegally, as stated in section R. Tewari vs District Board, Agra(2) might apply, it is necessary that the order must be the order of a statutory body acting in breach of a mandatory obligation imposed by a statute.
The college, or the Managing Committee in question, is not a statutory body and so the argument of Mr. Setalvad that the case in hand will fall under the third exception cannot be accepted.
The contention of counsel that this Court has sub silentio sanctioned the issue of a writ under Article 226 to quash an order terminating services of a teacher passed by a college similarly situate in Prabhakar Ramakrishna Jodh vs A. L. Pande and another(1), and, therefore, the fact that the college or the managing committee was not a statutory body was no hindrance to the High Court issuing the writ prayed for by the appellant has no merit as this Court expressly stated in the judgment that no such contention was raised in the High Court and so it cannot be allowed to be raised in this Court.
In this view of the matter, it is quite unnecessary to go into the question whether the appellant was given sufficient opportunity to meet the charges against him.
We hold that the High Court was right in its view that the writ petition was incompetent.
We, therefore, dismiss the appeal but, in the circumstances, we make no order as to costs.
section N. Appeal dismissed.

summary/full:
The appellant joined as a lecturer in a College in U.P.
On the hub ,of certain complaints received by the Manager of the College, charges were framed against him and his explanation, was called for.
He submitted an explanation.
The explanation was found unsatisfactory and the Managing Committee passed a resolution for removal of the appellant from service.
The relevant statutes governing the present case are Statutes 151, 152 and 153 framed under the provisions of the Lucknow University Act, 1920.
The appellant filed a writ petition before the High Court challenging the validity of the resolution and a learned single judge finding that the Managing Committee acted in violation of the principles of natural justice, quashed the resolution and allowed the writ petition.
On appeal, a Division Bench set aside the order of the learned single judge and dismissed the writ petition on the ground that no writ lies in the facts and circumstances of the case.
The remedy of the appellant lay in a suit for damages.
On behalf of the appellant it was contended that the appel lant had a statutory status, that his services were terminated in violation of the provisions of the statutes passed under the Lucknow University Act, 1920 and therefore, the High Court was wrong in its conclusions that no writ of certiorari would lie against the respondent.
It was further submitted that ,the appellant was not given a reasonable opportunity of defending himself against the charges.
Statue 151 provides that a teacher of an associated College shall be appointed on a written contract and the contract shall provide the conditions mentioned there in addition to such other conditions as the associated College may include in the agreement.
Clause 5 of the agreement provides that the Managing Committee may dispense with the services of a lecturer without notice if the Committee is satisfied that it is necessary to remove the said lecturer for misconduct or otherwise, provided, an opportunity is given to him by the Committee to give his explanation before a decision is arrived at.
Dismissing the appeal.
HELD : (1) When there is a purported termination of a contract of service,.
a declaration that a contract of service 'still subsisted would not be made in the absence of special circumstances and courts do not ordinarily enforce specific performance of a contract of service.
The remedy of the victim lies in a claim for damages, not a claim for a declaration that the contract of service still subsisted.
[322 E F] Executive Committee of U.P. State Warehousing Corporation Ltd. vs Chandra Kiran Tyagi, ; ; and Indian Airlines Corporation vs Sukh Dev Rai, ; followed.
(2) On a plain meaning of statute 151, it is clear that it only provides that the terms and conditions mentioned therein must be incorporated in 321 the contract to be entered into between the College and the teacher concerned.
It does not say that the terms and conditions have any legal force, until: and unless they are embodied in an agreement.
The terms and conditions of service mentioned in Statute 151 have proprio vigore, no force of law.
They become terms of service only by virtue of their being incorporated in a contract.
Without the contract, they have no vitality and can confer no legal right.
Therefore, the appellant cannot find a cause of action of any breach of law, but only on the breach of the con tract, for which a writ in the nature of ceritiorari will not lie [327 H] (3) A writ will lie when the order is the order of a statutory body acting in breach of a mandatory obligation imposed by a statute.
The College or the Managing Committee in question, is not a statutory body and so the High Court is right is dismissing the petition.[328 D] Further, since the High Court has no jurisdiction, it is not necessary to go into the question as to whether the appellant was given sufficient opportunity to meet the charges against him.
[328 G] Prabhakar Ramkrishna Jodh vs A. L. Pande & anr.
[1965] 2 S.C.R. 713, and Vidyodaya University vs Silva discussed and distinguished.


judgement:
Appeal No. 527 of 1967.
Appeal from the judgment and decree dated August 2nd/3rd, 1965 of the Mysore High Court in Regular First Appeal No. 147 of 1958.
M. Natesan and K. Jayaram, for the appellant.
section section Shukla, for respondents Nos. 1 to 4.
The Judgment of the Court was delivered by Hedge, J.
This appeal by certificate arises from the deci sion of the Mysore High Court in R.A. No. 147 of 1958 on its file.
The plaintiff is the appellant.
The main question that arises for decision in this appeal is as to the share to which the plaintiff is entitled in the properties held to be partible by the High Court.
One other minor contention had also been urged which will be referred to and dealt With at the appropriate stage.
The facts as found by the High Court and which are no more in dispute may now be stated.
The appellant is the adopted son of one Ranga Rao alias Ramachandra Rao who died in 1912.
He was adopted by the 202 said Ranga Rao 's widow Seethabai on September 18, 1955.
The geneology of the family of Ranga Rao is as follows KRISHNA RAO DESHPANDE (Died 1934) MARRIED RADHABAI (Died 1935) Ranga Rao alias Hanumantha Rao Ramchandra Rao (went out of the (died 1912) family by adoption).
Married Seethabai (Defendant No. 1) Govinda (Adopted on 18 9 1955) Plaintiff Lakshmana Rao (died 6 9 1952) Married Venkubai Ambabai lst wife 2nd wife (died 1904) Napppa Nagamma Ansuyabai (Nagesh) Deft.
7 Deft.
2 Krishnaji Lakshamana Gundappa Deft.3 (Deft. 4) Deft. 5.
Hanumantha Rao went out of the family having been adopted into some other family.
There was a partition between Krishna ' Rao and Lakshmana Rao, the only two existing coparceners at that time, in 1933.
After partition Krishna Rao is said to have bequeathed his properties to some of his relations as per his will dated November 8, 1934.
Subsequently there was a further partition between Lakshmana Rao and defendant No. 2 Nagappa on 203 February 14, 1946.
Lakshmana Rao died in 1952.
Asmentioned earlier, the plaintiff was adopted on September 18, 1955 and the suit from which this appeal arises was instituted in1956 by the plaintiff appellant represented by his natural father ashis ' next friend as he was a minor on the date of the suit.
The trial court granted the plaintiff half share in the properties that were held to be that of the family.
The High Court modified the decree of the trial court in certain respects.
It is not necessary to refer to all the modifications made by the High Court.
We shall refer only to those modifications which are challenged in this appeal.
The High Court reduced the share awarded to the plaintiff from half to 1/3rd of the properties held by it to be partible.
The correctness of this decision is questioned.
The only other question is whether the High Court was justified in setting aside the trial court 's decree awarding a sum of Rs. 15001 to the plaintiff.
Before proceeding to examine the appellant 's contention that he is entitled to a half share in properties held to be partible, it would be convenient to dispose of his contention relating to the money decree.
The trial court came to the conclusion that out of the consideration of Rs. 6500/ received under the sale deed Exh. 177, the second defendant had not accounted for Rs. 3000/ .
Hence the plaintiff is entitled to a half share therein.
The trial court as well as the High Court have found that the sale in question is valid as the same was effected to meet family necessities.
The appellant did not seek an accounting from the 2nd defendant.
No case was made out for requiring the 2nd defendant to account in respect of the amounts received by him as the karta of the family, nor did the plaintiff aver in his plaint that there was any cash in the hands of the 2nd defendant.
Hence the High Court was justified in reversing the decree of the trial court directing the defendant to pay to the plaintiff a sum of Rs. 1500/ .
This leaves us with the question as to the share to which the plaintiff is entitled in the partible properties.
Even before the plaintiff was adopted into the family, there was a partition between Krishna Rao and Lakshmana Rao.
The genuineness of that partition is no more in dispute.
After the partition Krishna Rao became absolutely entitled to his share of the properties and hence he was entitled to deal with that property in the manner he thought best.
As mentioned earlier he had bequeathed his properties to others.
But it was urged on behalf of the appellant that his adoption dates back to the date of the death of his adoptive father, Ranga Rao.
By a fiction of law, he must be deemed to have been in existence, when Krishna Rao and Lakshmana Rao divided the properties amongst themselves.
The said partition having been effected without his joinder, the same has to be 204 ignored.
Hence he is entitled to a half share in the properties.
Alternatively, it was contended that the plaintiff is entitled to get by succession half share in the properties that fell to the share of Krishna Rao.
Before proceeding to examine the decided cases referred to at the time of the arguments, let us proceed to examine the question on first principles.
It is true that by a fiction of law well settled by decided cases that an adopted son is deemed to have been adopted on the date of the death of his adoptive father.
He is the continuator of his adoptive father 's line exactly as an aurasa son and an adoption, so far as the continuity of the line is concerned, has a retrospective effect.
Whenever the adoption may be made there is no hiatus in the continuity of the line.
From that it follows that the appellant must be deemed to have been adopted in 1912.
Consequently he is deemed to have been a coparcener in his adoptive father 's family when Krishna Rao and Lakshmana Rao partitioned the properties.
The partition having been effected without his consent, it is not binding on him.
But from this it does not follow that Krishna Rao and Lakshmana Rao did not separate from the family at the time of the partition.
It was open to Krishna Rao and Lakshmana Rao to separate themselves from the family.
Once they did separate, the appellant and his adoptive mother alone must be deemed to have continued as the members of the family.
It is true that because the plaintiff 's adoptive mother was alive, the family cannot be said to have come to an end on the date of partition.
But that does not mean that Krishna Rao and Lakshmana Rao did not separate from the family.
the partition took place in 1933, the appellant even if he was a coparcener on that day could have only got 1/3rd share.
We, fail to see how.
his position can be said to have improved merely because he was adopted subsequent to the date of partition.
It is true that because he was not a party to the partition, he is entitled to ask for reopening of the partition and have his share worked out without reference to that partition.
But so far as the quantum of his share is concerned, it must be determined after taking into consideration the fact that Krishna Rao and Lakshmana Rao separated from the family in 1933.
The alternative contention of the appellant referred to earlier is also untenable firstly because Krishna Rao disposed of his share of the properties by means of a will and secondly even if he had not disposed of his: share of the property, the same would have devolved on Lakshmana Rao by succession and the property that had once vested by succession cannot be divested as in that property the plaintiffs adoptive father had no right of his own.
The doctrine of relation back is only a legal fiction.
There is no justification to logically extend that fiction .
In fact the plaintiff had nothing to do with his adoptive father 's family when Krishna Rao died.
On that day 205 his adoptive father was not alive.
The devolution of Krishna Rao 's property must be held to have taken place at the very moment Krishna Rao died.
We know of no legal fiction under which it can be said to have been in a suspended animation till the plaintiff was adopted.
This takes us to the decided cases.
A long line of decisions has firmly laid down that an adoption dates back to the date of the death of the adoptive father.
It is not necessary to refer to the catena of decisions on this point.
Suffice it to refer to the decision of this Court in Shrinivas Krishnarao Kango vs Narayan Devji Kango and Ors.(1).
But that fiction by itself does not help the plaintiff.
That fiction merely enables him to establish that he must be deemed to have been in existence on the date of the death of his adoptive father.
Division of status need not be effected by bilateral agreement.
It can be effected by an unilateral declaration by a coparcener if the same is properly communicated.
Therefore it was within the power of Krishna Rao and Lakshmana Rao to separate themselves from the family and in fact they did so in 1933.
We see no basis for the contention of the appellant that he can ignore the events that took place in 1933.
He can no doubt ignore the actual partition by metes and bounds effected by Krishna Rao and Lakshmana Rao and ask for a repartition of the properties but his adoption by itself does not and cannot re unite the divided family.
It is one thing to say that an adopted son can ignore a partition effected prior to his adoption, which affects his rights and it is a different thing to say that his adoption wipes out the division of status that had taken place in his family.
Reliance was placed on the decision of the Bombay High Court in Ramchandra Shrinivas and Ors.
vs Ramkrishna Krishnarao (2 ) in support of the proposition that the plaintiff can enter into the adoptive family on the basis that the family is a joint and undivided Hindu family and his rights in the property of the family must be decided on that basis.
It is true that this decision lends some support to the argument that despite the partition effected in 1933, the plaintiff can work out his rights on the basis that the family remains joint.
The conclusion of the High Court that the adopted son is entitled to enter his adoptive family on the basis that the family continues as a joint and undivided Hindu family and that his rights in the family property must be decided on that basis does not appear to be supported by any Hindu law text or by any decision of this Court or the Judicial Committee.
The decision of the Judicial Committee in Anant Bhikappa Patil, Minor vs Shankar Ramchandra Patil(3), relied on by the High Court did not consider that question.
It is true that some of the observations of Chief Justice Stone in Bajirao and Ors.
vs Rant (1) ; (2) A.I.R. 1952 Bam.463 (3) 70 I.A. 232.
206 krishna(1), does support the view taken by the Bombay High Court.
But the question that arose for decision in that case was whether a person adopted, after a partition in his adoptive father 's family cannot divest the properties that had vested in the other coparceners.
It may be noted that in the course of his judgment, the learned Chief Justice observed : "There can, in our opinion, be no question of a partition whereby the partitioning male members take away all the family property from a joint Hindu family unless the family can be wholly disrupted and finally brought to an end.
We regard it as clear that a Hindu family cannot be finally brought to an end while it is possible in nature or law to add a male member to it.
The family cannot be at an end while there is still a potential, mother if that mother in the way of nature or in the way of law brings in a new male member.
The existing male members can separate off; they can take away their share.
They cannot prejudice by partitioning the rights of the after bom male member whether the birth is natural or legal.
If in point of fact, before his arrival, the existing coparceners have partitioned the new arrival can obtain a re opening of the partition and thereby get his share.
How that share is to be calculated in various circumstances need not be decided here.
" These observations in our opinion lay down the ratio of the decision and that ratio does not support the conclusion reached by the Bombay High Court.
The decision of the Full Bench of the Madras High Court, in K. R. Sankaralingam Pillai and anr.
vs Veluchami Pillai, Minor (2) , relied on by Bombay High Court merely laid down that an adopted son is entitled to reopen partition entered into in the family of his adoptive father, before his adoption.
That position is no more open to question and was not questioned in this appeal.
We are only concerned with the quantum of share to which the plaintiff is entitled.
Our attention has not been invited to any decision which supports the view taken by the Bombay High Court.
We see no justification to accept that view.
Further the interest of the society is not advanced by engrafting one more fiction to the already existing fiction that an adopted son is deemed to have been born on the date of death of his adoptive father.
Acceptance of the new fiction canvassed on behalf of the plaintiff is bound to create various complications.
Hindu widows in the past were proverbially long lived because of 'the child marriage system.
Adoptions might take place and have taken place more than half a century after the death of the adoptive (1) I.L.R. (2) I.L.R. 207 father.
Meanwhile the other coparceners might have dealt with the family property on the basis of the then existing rights.
They might have alienated the property.
We see no justification to create chaos by inventing a new fiction unknown to Hindu law texts nor authorised by stare decisis.
This Court in Shrinivas Krishnarao Kango 's case(1) has laid down that the fiction that an adoption relates back to the date of the death of the adoptive father applies only when the claim of the adoptive son relates to the estate of the adoptive father.
But where the succession to the property of a person other than the adoptive father is involved, the principle applicable is not the rule of relation back but the rule, that inheritance once vested cannot be divested.
It is true that the question that arose for decision in that case was whether an adoptive son can claim to succeed to a collateral 's estate, divesting the property that had already vested in someone else.
But the rule laid down by this Court in that case is much wider than the limited question that arose for decision and the reasons given in support of that rule support our conclusion.
The rights of an adopted son cannot be more than that of his adoptive father.
If the plaintiff 's adoptive father was alive in 1933 when the partition took place, he could not have obtained anything more than 1/3rd share in the family properties.
It passes our comprehension how the plaintiff could acquire a greater right than his adoptive father could have had if he had been alive on the date of partition and that he could have got if he had been adopted prior to that date.
In our judgment the plaintiff 's claim for a half share in the family properties is unsustainable.
In the result ibis appeal fails and the same, is dismissed with costs.
S.C. Appeal dismissed.
(1) [1955] 1.S.C.R. 1.

summary/full:
The appellant was adopted in 1955 by R 's widow after R 's death in 1912.
In 1933, there was a partition between K (R 's father) and his third son L, the only two coparceners existing at that time.
Thereafter, K. bequeathed his properties by will to some of his relations.
Later, there was a further partition between L and his son.
L died in 1952.
A suit was filed in 1956 by the appellant, claiming half of the family properties.
The trial court granted the appellant half share in the family properties.
The High Court reduced the share awarded to the appellant from 1/2 to 1/3 of the properties held by it to be partible.
The High Court also set aside the trial court 's decree awarding a sum of Rs. 1500 to the appellant as his share of the consideration received under a sale deed; In appeal to this Court the appellant contended that his adoption related back to the date of death of his adoptive father; by a fiction of law, he must be deemed to have been in existence when K and L divided the properties between them; the partition, having been effected without his joinder, the same had to be ignored; and, therefore, he was entitled to a half share in the properties.
Alternatively, it was urged that the appellant was entitled to get by succession, half share of the properties that fell to the share of K. Dismissing the appeal, HELD.
(i) The appellant must be deemed to have been adopted in 1912 when R died.
Therefore, he must be deemed to have been a coparcener in his adoptive father 's family when K and L partitioned the properties in 1933.
The partition having been effected without his consent, it is not binding on him; but from this it cannot be said that K and L did not separate from the family.
So far as the quantum of his share is concerned it must be determined after taking into consideration the fact that K & L separated from the family in 1933.
The appellant can ignore the actual partition,by meters and bounds effected by K and L and ask for a repartition of the properties but his adoption by itself cannot reunite the divided family.
The rights of an adopted son cannot be more than that of his adoptive father.
The fiction that an adoption relates back to the date of the death of the adoptive father applies only when the claim of the adopted son relates to the estate of the adoptive father.
If the appellant 's adoptive father was alive in 1933, when the partition took place, he could not have obtained anything more than 1/3rd share in the family properties.
Therefore, the appellant 's claim for a half share in the family properties is unsustainable.
T204 G; 207 B] 201 The alternative claim of the appellant is also not tenable because K disposed his share by a will and secondly, even if he had not disposed of his share, the same would have developed on L by succession and the property once vested cannot be divested as in that property the plaintiffs adoptive father had no right of his own.
The doctrine of relation back is only a legal fiction.
When K. died, plaintiff 's adoption father was not alive.
The revolution of K 's property must be held to have taken place as soon as K died.
The property could not have remained in a suspended animation till the appellant was adopted.
[2O4G] Shrinivas Krishnarao Kango vs Narayan Devji Kango and ors.
; , ; Anant Bhikappa Patil, Minor vs Shankar Ramchandra Patil, 70 I.A. 232; Bajirao and Ors.
vs Ramkrishna, I.L.R. and K. R. Sankaralingam Pillai and Anr.
vs Veluchami Pillai, Minor, I.L.R. , referred to.
Ramachandra Srinivas vs Ramakrishna Krishna Rao, A.I.R. 1952 Bom.
453, disapproved.
(ii) Both the courts below found the sale in question valid as the same was effected to meet family necessities.
As the appellant did not seek an accounting from the 2nd defendant, and as no case was made out for requiring the second defendant to account in respect of moneys received by him as Karta and as the plaint did not state that there was any cash in the hands of the 2nd defendant, the High Court was justified in reversing the decree of the trial court directing the payment of Rs. 1500 to the appellant.
[203 E]


judgement:
Appeal No. 279 of 1967.
343 Appeal by special leave from the judgment and decree dated September 15, 1966 of the Allahabad High Court in Second Appeal No. 222 of 1960.
G. N. Dikshit and O. P. Rana, for the appellants.
E. C. Agrawala, for respondents Nos. 1, 2, 4 and 5.
The Judgment of the Court was delivered by Beg, J.
There are two appeals by Special Leave before us, Leave, against the Judgment and decree of a learned Judge of the Allahabad High Court allowing a plaintiff 's second appeal The plaintiff 's case was that the Government of Rampur had given him a house "under the orders of His Highness the Nawab of Ramur, passed on 23rd June, 1945".
It appears that, after the merger of Rampur State in Uttar Pradesh in 1949, when Rampur became a district of Uttar Pradesh, this house was given by the Government of Uttar Pradesh to the Municipal Board of Rampur, Defendant Appellant, which demanded rent from the plaintiff by notice.
On the plaintiff 's refusal to pay, the house was attached on 23rd February, 1955.
The plaintiff deposited a sum of Rs. 100 under protest.
He then filed his suit, on 26 10 56, for a declaration that he is the owner in possession of the house, and, in the alternative, that he is a "licensee" entitled to remain in possession of the house for life without payment of rent The defendants, the State of Uttar Pradesh, the Municipal Board of Rampur, and the Public Work.$ Department at Rampur, denied the alleged gift of either the ownership or of a life interest in the house to the plaintiff.
They also pleaded that there was no relationship of landlord and tenant between the plaintiff and the defendants.
Their case was that, if any permission to reside in the house was given to the plaintiff by the ruler of the State of Rampur before the merger of Rampur with Uttar Pradesh, it was valid and effective only so long as the plaintiff was in the service of the former ruler of Rampur.
They set up a claim to "damages for use and occupation in the form of rent from the plaintiff at Rs. 10/ per month from 1 4 1953 to 30 1 1954".
According to them, the plaintiff 's licence, if any, automatically terminated when the State of Rampur merged with the State of Uttar Pradesh.
The defendants had also pleaded that the alleged gift, which was not governed by Mahomedan law, could not be upheld because no registered deed of gift was executed to transfer a house the value of which was far in excess of Rs. 100/ .
The Trial court as well as the first Appellate Court bad found, after ,in examination of all the evidence, including the alleged 344 order dated 23rd June 1945, of His Highness the Nawab of Rampur (Exhibit 1), a letter dated 30th June 1949 ',Exhibit A 10) from a Minister of Rampur State to "the Secretary (Buildings), fixing rent for the house and the oral evidence that the plaintiff had not proved either of the two alternative claims set.
up by him.
A learned Judge of the Allahabad High Court had, upon the plaintiff 's second appeal, reversed the concurrent findings of fact recorded by the Courts below because the learned Judge thought that "the order of the Nawab of Rampur dated 23rd June 1945", constituting a valid declaration of a gift, by the owner of the house, followed by the plaintiff 's admitted actual possession of the house conferred ownership of the house upon the plaintiff respondent according to Mahomedan law.
The learned Judge also held that nothing beyond this order of the Nawab could be looked into for deciding what was intended by the Nawab and that the use of the words "inteqal" and "atta" in the following extract from the order in Urdu determined the intent of the Nawab conclusively. "Ap ki sakunat ke waste Abdul Karim Sabib wala makan atta farmaya gaya hai.
Ap aj hi us me muntaquil ho jayen.
Ap un se mil kar inteqal niaka.1 ki karrawai kariye".
The questions arising before us for decision are : firstly, whether the alleged gift is governed by Mahomedan Law; secondly, whether the requirements of Mahomedan law for establishing a gift of the house or of its usufruct for life to the plaintiff could be held to have been satisfied in this case; and, thirdly, whether nothing beyond the order of 23 6 1945 could be looked into to determine the Nawab 's intention.
One could legitimately presume that a gift by the Nawab of Ranipur, a Muslim, would be governed by the rules of Mahome dan law if the Nawab was dealing with his own private property.
In the case before us, we find that the plaintiff himself has pleaded that he acquired his right and title to the house in dispute from the Government of Rampur State, although the action of the Government was said to be "under the orders dated June 23, 1945, of His Highness the Nawab of Rampur".
Upon an examination of the alleged order, which has been treated by the learned Judge of the Allahabad High Court as a valid declaration of a gift of the house by its owner, governed by Mahomedan law, we find that it is only a piece of information sent.
to the plaintiff who is described as "Nigran Shikar Mahi" or "Supervisor of Fishing.
" The communication, translated in English in the paper book of this Court, reads as follows : "His Highness has passed orders that you should immediately vacate the house in which you reside and 345 pay up to the landlord all his dues.
Abdul Karim wala house has been given to you for your residential purpose.
You should shift to that house this very day.
The Executive Engineer (Buildings) has been intimatto allot the said house to you immediately.
Please contact him and take steps to va cate the house".
The plaintiff himself had produced Agha Khan, the Assistant Military Secretary of the Nawab of Rampur, who had signed and sent the communication, set out above, to the plaintiff.
His evidence shows that the Nawab of Rampur had probably given some oral order to get the private house in which the plaintiff was living vacated, and "to give" another House to him for residence.
Under cross examination, the witness stated that, by using the word "inteqal" in the writing, he meant to convey that "the plaintiff should leave that house and live in the house in dispute." This witness, who was not owner of the house, could not gift the house in dispute to the plaintiff.
He could only "give" the house to the plaintiff in the sense that he could, under the Nawab 's orders, obtain its allotment for the plaintiff.
He said that its previous occupant, a mechanic, was also occupying it, without payment of any rent, with the Nawab 's permission.
The implication of such a statement could only be that the plaintiff had a similar permission.
He did not depose that the Nawab had asked him to inform the plaintiff that the Nawab was making a gift of the house to the plaintiff.
The witness stated that the house belonged to the Government of Rampur.
All this evidence is consistent with the view that the Nawab meant to do nothing more than to resolve the immediate difficulty of the plaintiff, by giving him some free residential accommodation in a house owned by the Government so that the plaintiff could clear up his dues to his landlord, rather than with the conclusion that the Nawab intended to confer the ownership of the house on the plaintiff.
It is well established that a document must be read as a whole.
In a document meant for a transfer of ownership, the purpose is generally stated clearly to be that the property given will be owned and possessed henceforth by the donee in such a way that he could use it or deal with it as he liked.
The only 'karawai ' or proceeding, to which a reference is made in the document, seemed to be "allotment" of accommodation or transfer of plaintiff 's residence into another house, owned by the State, for which appropriate steps were to be taken by a Government official.
The communication savs, as translated, that the Executive Engineer (Buildings) had been informed that the house in question was to be "allotted" to the plaintiff.
If the plaintiff was to become its owner, that would have been communicated to the 346 Executive Engineer.
A transfer of ownership would, in the ordinary course, be expected to be evidenced by much more clear and unequivocal language.
The appropriate proceeding after a gift is that of mutation in Municipal records.
No evidence was given of any mutation in a Municipal record showing transfer of ownership of the 'corpus ' for which the term 'milkiyat ' is used.
It is true that, as the learned Judge observed, the word 'Inteqal ' is used ill connection with a transfer of property.
This is so when it occurs in juxtaposition with 'Jaidad '.
In (the document before us, the following words indicate that transfer which the Nawab had in mind was that of the plaintiff himself to another residence in the physical sense : "Ap aj hi us me muntaqil ho jayen.
" This meaning is further emphasised by the use of the words "sakunat ke waste" (for residential purpose) which was the only stated object of the "inteqal." Again, the word "atta" is used to denote all kinds of grants.
The grant may be of a license or of ownership of property.
The word "atta" could be used by a courtier, as a matter of form, to indicate anything granted by the Nawab whether it be mere permission to live in a house or something more.
If the intention of the Nawab was to grant ownership, the language used to communicate it would not have left it in doubt.
It is significant that the plaintiff, who stated in his evidence that the gift was meant to have been made "in lieu of old services", had not mentioned this object of the alleged donation in his plaint.
It is also evident that he was not sure of his own rights or position because he took up an alternative case of a gift of the right to live in the, house for life.
We do not find the word 'hibba ' or gift used at all in this document.
Nor is the word "amree" or any other similar word, which could connote a life estate, used in the document.
There being no mention either of rights of ownership or those of a life estate holder, the mere use of the words "inteqal" and "atta" does not determine, as the learned Judge assumed, what was really meant to be granted or transferred.
We think that oral and other evidence, besides the document under consideration, was both necessary and admissible under Proviso (6) to Sec.
92 of the Indian Evidence Act to resolve a latent ambiguity caused by the two vague words used in it and to show how its language was related to the existing facts even if one were to assume that the information contained in it was meant to reduce the terms of a grant to the form of writing.
Upon the view we are taking of the facts of this case, it is not necessary for us to embark on any detailed discussion of essentials 347 of a gift under the, Mahomedan law.
It is enough to point out that even if the rules of Mahomedan law were to be applied to the transaction before us the very first of the three conditions of a valid gift, given in Mulla 's 'Principles of Mahomedan Law" (16th Edn.
p. 141) that of "a declaration of gift by the donor" is lacking here.
Such a declaration must indicate, with reasonable clarity, what is really gifted.
It is also not necessary for us to deal with the distinction between separable gifts of the 'corpus ' and the 'usufruct ', recognised by Mahomedan law, which references to Amjad Khan vs Ashraf Khan( ') and Nawazish Ali Khan vs Ali Raza Khan(2) would disclose.
After an examination of all the admissible evidence, relating to the nature of the transaction set up by the plaintiff, which should have been considered, we are satisfied that the plaintiff failed to, prove either a grant of the 'corpus ' or of the 'usufruct ' of the house to him for his life by its owner.
The transaction before us would amount to nothing more than the grant of a license, revocable at the Grantor 's option to reside in the house so long as the grantor allowed the licensee to do so.
Such a grant is known as "areeat" in Mahomedan law (See: Mulla 's Principles of Mahomedan Law, Sixteenth Edition, page 166).
The terms of the alleged grant, even if they are to be found only in the communication sent to the plaintiff, are not, read in the context in which they occur, capable of raising an inference of a larger grant.
The mere expenditure of small sums of money over necessary repairs, alleged by the plaintiff, could not convert it into an irrevocable license.
Consequently, we allow this appeal and set aside the judg ment and decree of the High Court.
We do not think that this is a fit case in which the appellant should get the costs of this litigation as the plaintiff had some grounds to be misled by the communication received by him.
The parties will, therefore, bear their own costs throughout.
V.P.S. Appeal allowed.
(1) A. I. R. (2) A.I.R. 1948 P.C. p. 134.

summary/full:
Pursuant to an order by a Muslim ruler of an erstwhile princely State, the respondent was allotted a house and he was living in it.
After the merger of the princely State with the appellant State, rent was demanded from the respondent and he filed a suit for a declaration that be was the owner in possession of the house; and in the alternative, that he was a licensee entitled to remain in possession for life without payment of any rent.
The High Court, in second appeal, held that the use of the Urdu words 'inteqal ' and 'atta ' showed that the Ruler intended the order to be a valid declaration of gift under Mohammedan Law and that when the respondent took possession of the house, he became its owner.
The High Court also held that no other evidence was admissible for deciding on the Ruler 's intention.
Allowing the appeal to this Court, HELD : (1) There being no mention in the order either of rights of ownership or those of a life estate holder, the mere use of the two words, did not determine what was meant to be granted.
The word 'inteqal ' is used in connection with a transfer of property, but in the context of its use here, it could only indicate that the respondent was to have change or transfer his residence in the physical sense.
The word 'atta ' is used to denote all kinds of grants including a mere permission to live in a house.
Therefore, assuming that the order reduced the terms of a grant to writing, oral and other evidence was both necessary and admissible under section 92, proviso (6), Evidence Act, to resolve the latent ambiguity.
The evidence adduced in the case, however, is more consistent with the view that the Ruler meant to resolve the immediate financial difficulty of the respondent by giving him free residential accommodation than with a conferment of the ownership of or a life interest in the house.
[346 B H] (2) There was no declaration of any gift either of the corpus or the usufruct and the admissible evidence relating to the nature of the transaction, which the High Court should have considered, showed, that the transaction amounted to nothing more than a grant of a licence revocable at the grantor 's option.
From the mere expenditure by the respondent of money over some necessary repairs, an inference of a larger grant cannot be drawn.
[347 C. E]


judgement:
No. 307 of 1971.
Under article 32 of the Constitution of India for a writ in the nature of habeas corpus.
R. K. Jain, for the petitioner G. L. Mukhoty and G. section Chatterjee, for the respondent.
The Judgment of the Court was delivered by Khanna, J.
This is a petition through jail under article 32 of the Constitution of India for the issuance of a writ of habeas corpus by Ram Krishna Paul who has been ordered to be detained under section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 (President 's Act No. 19 of 1970), hereinafter referred to as the Act.
402 The order of detention was made against the petitioner under sub section (1) read with sub section (3) of section 3 of the Act by the District Magistrate, Murshidabad on January 27, 1971.
According to the order of detention, the District Magistrate was satisfied with respect to the petitioner that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it was necessary to make an order directing his detention.
The petitioner in pursuance of the detention order was arrested on January 28, 1971 and was served with the same day with the ground of detention together with vernacular translation thereof.
Report about the making of the detention order was sent by the District Magistrate to the State Government along with the grounds of detention and other particulars on January 27, 1971.
The report and the particulars were considered by the State Government and the order of detention was approved by the said Government on February 5, 1971.
The same day the State Government submitted a report to the Central Government together with the grounds of detention and other particulars.
On February 18, 1971 the State Government in its Home Department received re presentation dated February 15, 1971 sent by the petitioner.
The said representation after consideration was rejected by the State Government 'on March 23, 1971.
In the meanwhile, on February 25, 1971 the State Government placed the case relating to the petitioner before the Advisory Board.
The representation made by the petitioner was sent by the State Government to the Board on March 23, 1971.
The Advisory Board after hearing the petitioner, sent its report to the State Government on April 5, 1971.
Opinion was expressed in its report by the Advisory Board that there was sufficient cause for the detention of the petitioner ' The State Government confirmed the order of detention of the peti tioner on May 31, 1971.
The confirmation order was communi cated to the petitioner as per memorandum dated June 10, 1971.
The petition was resisted by the respondents and the affidavit of Shri Manoranjan Dey, Assistant Secretary, Home (Special) Department, Government of West Bengal was filed in opposition to the petition.
After hearing Mr. R. K. Jain who argued the matter amicus curiae on behalf of the petitioner and Mr. G. L. Mukhoti on behalf of the respondents on January 13, 1972, we directed that, for reasons to be recorded later, the petitioner should be set at liberty.
We now proceed to give reasons in support of our decision.
Although a number of submissions were made on behalf of the petitioner at the hearing, it is, in our opinion, not necessary to deal with all of them as the detention order is liable to be quashed because one of the grounds for the detention of the petitioner was 403 extraneous and did not in law justify the making of the detention order.
The grounds of detention which were supplied to the peti tioner under sub section (1) of section 8 of the Act read as under : " (1) That on 8 12 70 at about 20.00 hours you along with your associates went to Jnanada Pharmacy in Berhampore town posing yourself a purchaser of medicine and demanded money from the owner of the Pharmacy in the name of collection towards party fund.
Out of fear, the owner of the pharmacy delivered Rs. 10/to you.
(2) That on 18 12 70 at about 20.00 hours you along with your associates had been to Punjab Dastralaya Khagra, P. section Berhampor and demanded Rs. 100/from the shopkeeper at the point of dagger on the plea of collecting donation towards the party fund.
Putting the owner of the shop in fear of instant death, you induced him to deliver up an amount of Rs. 100/ then and there, (3) That on 22 10 70 at about 19.30 hours you along with your associates had been to Jnanada Pharmacy, Berhampore town and demanded Rs. 250/ from the owner of the Pharmacy at the point of dagger putting him in fear of instant death.
The owner of the Pharmacy was spared on payment of Rs. 50/ forthwith.
You and your associates went away fixing 26 12 70 for payment of the remaining amount.
(4) That on 26 12 70 a,.
about 20.00 hours you along with your associates came to Jnanada Pharmacy, Berhampore and realised Rs. 20/ from the owner of the Pharmacy at the point of dagger putting him in fear of instant death.
" The various circumstances under which a Person can be ' ordered to be detained have been set out in the different clauses of section 3 of the Act.
Ground No. 1 supplied to the petitioner, in our opinion, does not fall under any of those clauses.
According to Mr. Mukhoti the facts set out in ground No. 1 would show that the petitioner received Rs. 10/ from the owner of Jnanada Pharmacy as a result of extortion.
Extortion has been defined in section 383 of the Indian Penal Co& as under : "Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby 404 dishonestly induces the person so put in fear to deliver to any person any property or valuable security or anything signed or sealed which may be converted into a valuable security, commits "extortion.
" It would appear from the above definition that before a person can be guilty of extortion, he should intentionally put any person in fear of injury, to that person or to any other, and thereby induce that person so put in fear to deliver to any person some property, valuable security or anything signed or sealed which may be converted into valuable security.
Intentionally putting a person in fear of injury to himself or any other is, thus, a necessary ingredient of the offence of extortion.
In ground No. 1, however, there is no allegation that the petitioner had put any person in fear of any injury, to that person or to any other.
As such, it cannot besaid that the petitioner was guilty of extortion.
We thus find that ground No. 1 was of an extraneous character and did not justify an order of detention.
There is also nothing to show that the District Magistrate would have passed an order of detention of the petitioner in case he was not influenced by facts given in ground No. 1.
The extraneous nature of even one of the grounds of detention would, in our opinion, vitiate the order of detention.
We, therefore, quash the order of detention of the petitioner.

summary/full:
The petitioner was detained under section 6 of the West Bengal Prevention of Violent Activities Act, 1970.
One of the grounds of detention which was supplied to the petitioner under sub section (1) of section 8 was that he alongwith his associates went to a pharmacy posing himself as a purchaser of medicine and demanded money from the owner of the pharmacy in the name of collection towards party fund and out of fear the owner delivered Rs. 10/ to him.
Quashing the order of detention, HELD : (i) The ground does not fall under any of the clauses of section 3 setting out the circumstances under which a person can be ordered to be detained and is therefore extraneous in character.
(ii) There is no allegation in the ground that the petitioner had put any person in fear of any injury to that person or to any other.
As such it cannot be said that the petitioner was guilty of extortion.
Intention ally putting a person in.
fear of injury to himself or any other is a necessary ingredient of the offence of extortion.
[403 B] (iii) There is nothing to show that the District Magistrate would, have passed the order of detention of the petitioner in case he was not influenced by the facts mentioned in the ground.
Therefore, the extraneous nature of even one of the grounds of detention would vitiate the order of detention.
[403 D]