judgement:
Appeal No. 1839 of 1967.
Appeal by special leave from the judgment and decree dated February 16, 1967 of the Assam and Nagaland High Court in Civil Rule 2 of 1965.
V.A. Seyid Muhammad and S.P. Nayar, for the 'appellants.
A.K. Sen and D.N. Mukherjee, for the respondent.
66 The Judgment of the Court was delivered by Grover, J.
This is an appeal by special leave from a judgment of the Assam & Nagaland High Court by which a petition under Art, 226 of the Constitution filed by the respondent challenging the termination of his service was allowed.
The respondent was serving the railways as an Assistant Traffic Superintendent prior to December 2, 1957.
His services were terminated by serving on him one month 's notice under Rule 148 contained in the Indian Railways Establishment Code.
The respondent filed an appeal to the General Manager but he was informed by means of a letter dated February 3, 1959 that no appeal was competent.
In June 1959 he was offered reemployment as a Statistical Inspector in the scale of Rs. 200 to Rs. 300 plus the usual allowances on terms and conditions applicable to temporary employees.
It appears that the respondent accepted the offer and was appointed to the post.
He was finally informed by means of a letter dated December 31, 1959 that his representation had been considered by the Railway Board relating to the termination of his services as Assistant Traffic Superintendent but the same had been rejected.
On December 5, 1963 this Court decided by majority in Moti Ram Deka etc.
vs General Manager.
N.E.F. Railways etc.(1) that Rules 148 (3) and 149(3) of the Indian Railway Establishment Code were invalid.
The respondent made a representation thereafter in 1964 to the General Manager to reconsider the case of the termination of his services in the light of the law declared by this Court.
The; General Manager sent a reply dated June 3, 1964 saying that the question of the respondents reinstatement could not be considered as it was not covered 'by limits of law, i.e. it does not fail within a period of six years from the date of your termination of service".
This was followed by another letter dated December 7, 1964 in which it was stated: "It has now been clarified by the Railway Board that the claim for reinstatement of the Ex: Employees whose services were terminated in terms of Rule 148/ 149 within a period of six years prior to 5 12 63 (the date of the Supreme Court 's judgment), and whose representation is still pending is only to be considered.
Since your services were terminated on 2 12 57 which is more than six years counting backwards from 5 12 63, it is regretted that your request for reinstatement cannot be acceded to".
Thereupon the respondent filed a petition under article 226 of the Constitution in the.
High Court.
As stated before the petition (1) ; 67 was allowed principally on the ground that the railway authorities were not legally justified in making a distinction between officers whose services had been terminated within six years prior to the judgment of this.
Court in Moti Ram Deka 's(1) case and the cases of those whose services had been terminated earlier.
As pointed out in the judgment of the High Court that respondents services were terminated on December 2, 1957, he was behind time by 3 days only.
It was found that such an artificial demarcation between the two kinds of cases was hit by article 14 of the Constitution.
The other point that the respondent had accepted reemployment and must be deemed to have waived his rights to reinstatement to his original office was also repelled.
In Moti Ram Deka 's(1) case this Court held that the termination of the services.
of a permanent servant authorised by Rules 148(3) and 149(3) of the Railway Establishment Code was inconsistent with the provisions of article 311 (2) of the Constitution.
The termination of the services of a permanent servant authorised by those Rules was no more and no less than removal from service and article 311(2) was at once attracted.
In view of the law laid down by this Court the termination of the services of the respondent in December 1957 was wholly void and illegal.
The railway authorities recognised, as indeed they were bound to do, the implications and effect of the judgment of this Court but created a wholly illegal and artificial distinction by saying that only those employees whose services were terminated in terms Rule 148 within a period of six years prior to December 5, 1963 and whose representations were pending were to be considered for reinstatement, whereas the employees like the respondent whose services had been terminated on a date which was more than six years counting backward from December 5, 1963 would not be reinstated.
The fixing of the period of six years was on the face of it arbitrary and no valid or reasonable explanation has been given as to why this limit was fixed.
If the termination of service of an employee in terms of Rule 148 was wholly illegal and void and was violative of article 311 (2) of the Constitution his reinstatement should have followed as a matter of course.
The submission of the learned counsel for the appellant that the railway authorities would have found lot of difficulty and inconvenience in reinstating employees without taking into consideration the period which had elapsed is devoid of any merit and cannot be accepted.
The appeal fails and it is dismissed with costs.
G.C. Appeal dismissed.

summary/full:
The, services of the respondent as an Assistant Traffic Superintendent on the North East Frontier Railway were terminated after one month 's notice under Rule 148 of the Indian Railway Establishment Code with effect from December 2, 1957.
An appeal to the General Manager was held not to be competent.
On being offered a lower post the respondent accepted it.
By letter dated December 31, 1959 he was informed that his representation to the Railway Board had been rejected.
On December 5, 1963 this Court in Moti Ram Deka 's case held that Rules 148(3) and 149(3) of the Indian Railway Establishment Code were invalid being violative of article 311(2) of the Constitution.
The respondent made a representation in 1964 to the General Manager for reconsideration of his case in the light of the said judgment.
The representation was turned down on the ground that the Railway Board had decided to instate only those employees whose services had been terminated in terms of Rules 148/149 within a period of six years prior to the date of the Supreme Court 's judgment.
The respondent filed a petition under article 226 of the Constitution which was allowed by the High Court.
The General Manager appealed.
HELD: The fixing of a period of six years was on the face of it arbitrary and there was no valid or reasonable explanation as to why this limit was fixed by the railway authorities.
If the termination of service of an employee in terms of Rule 148 was wholly illegal and void because of violation of article 311(2) of the Constitution, his reinstatement should have followed as a matter of course.
The contention that the railway authorities would have found a lot of difficulty and inconvenience in reinstating employees without taking into consideration the period which had elapsed was devoid of merit and could not be accepted.
[67 F G] Moti Ram Deka etc.
vs General Manager, N.E.F. Railway etc.
; , applied.


judgement:
il Appeals Nos.
188, 188(A), 188(B) and 188(E) of 1952.
Appeals under article 133(1)(c) of the Constitution of India from the Judgment and Order dated the 6th December, 1951, of the High Court of Judicature at Bombay in Civil Applications Nos. 409, 410, 411 and 780 of 1951.
692 C.O. Shastri and Naunit Lal for the appellant in Civil Appeal No. 188 of 1952.
N.C. Chatterjee (Onkar Nath Srivastva and Rajinder Narain, with him) for appellants in Civil Appeals Nos. 188(A), 188(B) and 188(E) of 1952.
M. C. Setalvad, Attorney General for India, and C. K. Daphtary, Solicitor General for India (Porus A. Mehta and P. G. Gokhale, with them) for the respondents in all the appeals.
October 1 1.
The Judgment of the Court was delivered by JAGANNADH DAS J.
These are appeals by leave granted by the High Court of Bombay under article 133(1)(c) of the Constitution against its common judgment disposing of certain applications under article 226.
The short point involved in these appeals is whether the Bombay Taluqdari Tenure Abolition Act, 1949, (hereinafter referred to as the Act) is valid in law.
The impugned Act, as its very name indicates, was for ' the purpose of abolishing Taluqdari tenures in Bombay.
Section 3 of the Act enacts that with effect from the date on which the Act was to come into force the taluqdari tenure wherever it prevailed shall be deemed to have been abolished.
Under section 5(1)(a) all taluqdari lands are and shall be liable to the payment of land revenue in accordance with the provisions of the Bombay Land Revenue Code and the rules made thereunder.
Under section 6, broadly stated, all the items of property which are comprised within the taluqdari and belong to the taluqdar vest in the Government as its property and all rights held by the taluqdar in such property shall be deemed to have been extinguished.
Section 7 provides for payment of compensation in respect of the property so vested and rights so extinguished.
It also specifies the principles for and the manner of assessing and granting that compensation.
Section 14 provides for compensation with reference to the provisions of the Land Acquisition Act being payable in respect of any of the rights extinguished but not covered by the provisions of section 7 or any other section of the Act.
These broadly are the 693 main features of the impugned Act relevant for the present purpose.
The attack on the validity of the Act with reference to these provisions is that the Act is expropriatory, that it is not for any public purpose and that the compensation which it provides is illusory.
Now so far as the requirement of a public purpose is concerned it is too late in the day to maintain the contention that the abolition of the kind affected by the Act is not for a public purpose.
The only serious argument,therefore, is as to the alleged illusory character of the compensations provided by the Act.
The Act, it may be noticed, was one passed by the Bombay Legislature in the year 1949.
It received the assent of the Governor General on the 18th January, 1950, and was gazetted on the 24th January, 1950.
The attack in the High Court was accordingly based on the alleged violation of the provisions of section 299 of the Government of India Act, 1935, which is as follows: "(I) No, person shall be deprived of his property in British India save by authority of law.
(2) Neither the Federal nor a Provincial Legislature shall have power to make any law authorising the compulsory acquisition for public purposes of any land, or any commercial or industrial undertaking or any interest in, or in any company owning, any commercial or industrial undertaking, unless the law provides for the payment of compensation for the property acquired and either fixes the amount of the compensation, or specifies the principles on which and the manner in which, it is to be determined.
" It was contended before the High Court that this was an Act in respect of which a certificate could have been obtained from the President under clause (6) of article 31 of the Constitution in order to secure immunity from the challenge of unconstitutionality but since that has not been done, the liability to its challenge with reference to the alleged violation of section 299 of the Government of India Act remains.
The learned Judges of the High Court without going into the question whether or not under any of the 89 694 provisions of the present Constitution this piece of legislation was immune from attack of the kind put forward, dealt with the merits of the challenge and held that the Act was for a public purpose and that the compensation provided was neither illusory nor unfair and that accordingly there was no violation of the provisions of section 299 of the Government of India Act.
It is true that this is an Act which could have been submitted to the President for his certification under clause (6) of article 31 and that no such course has been adopted.
But this Act is one of the Acts specified in the Ninth Schedule of the Constitution being item (4) thereof and article 31 B which has been inserted in the Constitution by the First Amendment thereof in 1951 is as follows: "Without prejudice to the generality of the provisions contained in article 31 A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.
" By the above amendment therefore and by specifically enumerating this Act in the Ninth Schedule, it appears to us to have been clearly and unequivocally intended that the provisions of this Act should be immune from attack of the kind put forward.
Learned counsel for the appellants, however, strenuously contends before us to the contrary.
He points out that the validity of the Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950) which is the very first item in the Ninth Schedule was allowed to be challenged in this Court after the enactment of the First Amendment of the Constitution and that this Court has in fact held certain of the provisions thereof to be invalid.
The judgment of this Court doubtless shows that the 695 challenge was allowed and given effect to notwithstanding the protection given by article 31 B in respect of the alleged violation of the fundamental rights under the Constitution.
A careful perusal of the judgment however shows that the challenge allowed was as to the competency of the Legislature to enact certain provisions of the impugned Act which, in the opinion of the majority of the Court, were in the nature of fraud on the exercise of the legislative power.
(vide The State of Bihar vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Other8(1)).
Learned counsel accordingly urges that the protection under article 31 B is confined to a challenge based on the provisions of the Constitution and that it is therefore open to him to put forward a challenge based on a distinct ground, viz., in this instance violation of the provisions of section 299 of the Government of India Act.
He relies on the difference in language between article 31 B and clause (6) of article 31, which in terms refers to contravention also of the provisions of sub section (2) of section 299 of the Government of India Act.
It appears to us that takes too narrow a view of article 31 B.
What article 31 B protects is not a mere "contravention of the provisions" of Part III of the Constitution but an attack on the grounds that the impugned Act is "inconsistent with or takes away or abridges any of the rights conferred by any provisions of this Part.
" One of the rights secured to a person by Part III of the Constitution is a right that his property shall be acquired only for public purposes and under a law authorising such acquisition and providing for compensation which is either fixed by the law itself or regulated by principles specified by the law.
That is also the very right which was previously secured to the person under section 299 of the Government of India Act.
The challenge now made to the validity of the impugned Act is based on the alleged violation of that right.
Nor does this challenge cease to be in substance anything other than a challenge in respect of the violation of the said right Dotwithstanding that under section 299 of the Government of India Act the right is secured in terms which (1) 696 restricts the power of the Legislature an operates as a restraint on its competency.
What under the Government of India Act was a provision relating to the competency of the Legislature, was also clearly in the nature of a fundamental right of the person affected.
This appears from the Report of the Joint Parliamentary Committee on Indian Constitutional Reform, Vol. 1, Part 1, paragraphs 366 and 369.
But it is urged, that even so, article 31 B protects only the violation of the fundamental right in so far as "it was conferred by Part III of the Constitution" and that this right cannot be said to have been "conferred" by the Constitution.
We cannot agree with this contention.
This is clearly a case where the concerned right which was secured under section 299 of the Government of India Act in the form of a fetter on the competency of the Legislature and which in substance was a fundamental right, was lifted into the formal category of a fundamental right along with other fundamental rights recognised in the present Constitution.
There is therefore nothing inappropriate in referring to this right which was pre existing, along with the other fundamental rights for the first time secured by this Constitution, when grouping them.
together, as fundamental rights "conferred" by the Constitution, What is important to notice in the phraseology of article 31`B is that the protection is not merely against the contravention of certain provisions but an attack on the ground of unconstitutional abridgement of certain rights.
It will be illogical to construe article 31 B as affording protection only so far as these rights are taken away by an Act in violation of the provisions of the new Constitution but not when they are taken away by an Act in violation of section 299 of the Government of India Act which has been repealed.
The intention of the Constitution to protect each and every one of the Acts specified in the Ninth Schedule from any challenge on the ground of violation of any of the fundamental rights secured under Part III of the Constitution, irrespective of 'Whether they are preexisting or new rights, is placed beyond any doubt or question by the very emphatic language of article 31 B 697 which declares that none of the provisions of the specified Acts shall be deemed to be void or ever to have become void on the ground of the alleged violation of the rights indicated and "notwithstanding any judgment, decree or order of any court or tribunal.
" That intention is also emphasised by the positive declaration that "each of the said Acts or Regulations shall, subject to the power of any competent Legislature to repeal or, amend it, continue in force.
" We are, therefore, clearly of the opinion that the challenge to the validity of the Bombay Taluqdari Tenure Abolition Act, 1949 on the ground put forward was not open.
The appeals must, therefore, be dismissed with costs.
Costs one set.
Appeals dismissed.

dataset_name: IN-Abs

summary/full:
Held, that the validity of the Bombay Taluqdari Tenure Abolition Act, 1949 (Bombay Act LXII of 1949) cannot be questioned on the ground that it takes away or abridges the fundamental rights conferred by the Constitution of India in view of enactment of article 31 B which has been inserted in the Constitution by the First Amendment thereof in 1951 and in view of the Act having been specifticaIly enumerated as item No. 4 in the Ninth Schedule.
On the language used in article 31 B of the Constitution of India the validity of Bombay Act LXII of 1949 cannot also be challenged under section 299 of the Government of India Act, 1935.
The State of Bihar vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Others ([1952] S.C.R. 889) distinguished.


judgement:
Appeal Nos. 2410 and 2411 of 1966.
91 Appeal from the judgment ,and order dated March 20, 1963 of the Punjab High Court, Circuit Bench at Delhi in R.F.A. No. 122 D of 1962.
Bishan Narain, K. K. Raizada and A.G. Ratnaparkhi, for the appellant (in both the appeals).
A.S. Nambiar, K.R. Nambiar and Lily Thomas, for the respondent (in both the appeals).
The Judgment of the Court was delivered by Hidayatullah, C.J.
This is an appeal against the judgment, dated March 20, 1963, of a Division Bench of the Punjab High Court dismissing an appeal and a revision filed by the present appellant.
The appeal arises under the following circumstances: A suit was filed by the appellant in the Court of the Senior Sub Judge, Delhi for three reliefs in respect of a business in which the respondent was stated to be the manager and also for ejectment of the respondent from the premises in which the business was being carried on The same valuation was adopted for purposes of court fee and jurisdiction.
The valuation was divided into three parts: Rs. 4,000/ were taken as the valuation for rendition of accounts or arrears of rent, Rs. 130/ for injunction and Rs. 710/ for ejectment Total Rs. 4,840/ .
During the hearing of the suit and on objection by the defendant, the= valuation for ejectment was raised to Rs. 1,800/ .
It appears that the appellant paid the additional court fee but did not amend the plant.
The suit was decreed in part on May 11, 1961.
The appellant obtained a decree for Rs. 600/ as arrears of rent for 3/4 portion off the shop and Rs. 463.33 P. as damages for 1/4 portion of the shop ejectment from which portion was also decreed in his favour.
But the suit was dismissed as to the remaining arrears of rent or for accounts and ejectments from 3/4 of the premises.
The plaintiff (appellant) thereupon filed an appeal in the District Court of Delhi.
In stating the valuation for appeal, he correctly described the: three fold valuation in the suit as Rs. 4,000/ , Rs. 130/ and Rs. 1,800/ (total Rs. 5,930/ ).
He however valued the appeal as follows: Rs. 3,400/ as the valuation for arrears of rent or for rendition of accounts, Rs. 130/ for injunction and Rs. 1,350/ for ejectment (Total Rs. 4,880/ ).
Now it is obvious that if the valuation was Rs. 4,880/ appeal would have lain in the District Court, but if the appeal had to be valued at Rs. 5,930/ it had to go before the High Court.
When the notice of the appeal was served on the defendent (respondent) he flied a cross objection in the same court 92 but did not take any exception to the valuation of the appeal in the District Court on its presentation in that Court.
On July 25, 1962, the District Judge made an order upholding a preliminary objection taken before him at the hearing that the memorandum of appeal was liable to be returned for presentation to the proper court, and he ordered the memorandum of appeal to be so returned.
It appears that it was filed in the High Court the same day and, therefore, there was no loss of time after the return of the memorandum.
The appeal was delayed by nearly one year.
It may, however, be mentioned that the plaintiff (appellant) did not submit to the decision of the District Court but took the matter in revision before the High Court.
The appeal as represented and the application for revision were disposed of by the common judgment under appeal before us.
The High Court held that there was no ground for extending time under section 5 of the Limitation Act for which purpose an application had been sub joined to the appeal filed in the High Court.
The question in this case is whether the High Court was fight in dealing with this problem as it did.
The High Court seemed to be of the opinion that an Advocate (Mr. K.K. Raizada) of 34 years ' standing could not possibly make the mistake in view of the clear provisions on the subject of appeals existing in section 39(1) of the Punjab Courts Act.
That sub section at that time clearly showed that appeals of the value of Rs. 5,000/ must be filed before the District Court but appeals above Rs. 5 '000/must be filed before the High Court.
The High Court also felt that the learned counsel persisted in pursuing his own theory by willing a revision.
It is on this account that time was denied to the present appellant in the appeal.
The only question is whether the decision of the High Court can be accepted.
The law is settled that mistake of counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground.
It is always a question whether the mistake was bona fide or was merely device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way.
The High Court unfortunately never considered the matter from this angle.
If it had, it would have seen quite clearly that there was no attempt to avoid the Limitation Act but rather to follow it albeit on a wrong reading of the situation.
It is quite clear that the limitation for the appeal to the High Court was three times as much as it was for the District Court.
When the appeal was filed, litigant had as much as two months 93 in hand to file the same in the High Court.
Further he did not attempt to save court fee on the appeal but paid the same courtfee which would have been payable in the High Court.
It does not appear that he had an underhand motive for filing the appeal in the District Court.
Therefore, the filing of the appeal must be attributed entirely to the advice of the counsel.
Here again, the counsel did not suppress anything.
As has been stated earlier, he put down both the valuations in the forefront of his memorandum of appeal, that is to say, the valuation of the suit in the original court and the valuation of the appeal.
No doubt the counsel was one with some experience and ought to have known that an appeal above Rs. 5,000/ must be filed in the High Court and not the District Court and therefore, we have to see whether he was genuinely under a mistake or not.
Here there is proof that he adhered to this view, because not only he filed the appeal but also took a revision from the order of the District Court to the High Court, still labouring under the same mistaken view.
Further he, seems to have been misled by a rule, i.e.r. 4 in Ch.
3B of Vol. 1 of the rules and orders of the High Court which read as follows: "In a suit for the amount found to be due after taking into accounts, it is not the tentative valuation of the plaintiff, but the amount found to be due and decreed by the court that determines the forum of appeal.
" This rule is applicable in a case in which the amount decreed is larger than the amount for which the original suit was brought.
Now it is well known that in a suit for accounts, the plaintiff is not obliged to state the exact amount which would result after the taking of accounts.
He may do so if he is able to; but if he is not, he can put a tentative valuation upon his suit for accounts taking care that the valuation is adequate and reasonable in all the circumstances of the case.
But the rule also obtains that if the amount which is found is larger than the amount at which he stated his tentative valuation, he must file the appeal against the larger amount and in the forum before which an appeal of that valuation can go.
This rule does not apply where the amount decreed is below the valuation in the original court.
Here the original valuation holds good both to find the forum and to put a valuation.
After the amendment of the valuation on account of ejectment the total claim was Rs. 5,930/ and that determined the court of lowest denomination before which the appeal from the suit had to go.
That according to the other rule which we have cited was the High Court.
The second rule, which we have later cited, does not cut across the first rule.
This appears to be the error which was committed by Mr. Raizada and we do not 94 find anything in the case to show that this error was tainted by any mala fide motive on the part of the counsel for the litigant.
In the circumstances we think that the High Court would have been justified in extending time under section 5 of the Limitation Act and the reasoning of the High Court unfortunately started from a wrong angle.
We accordingly set aside the order of the High Court and remit the appeal for hearing and disposal according to law.
The appellant will however pay all the costs of the respondent which have been incurred till today irrespective of the result.
We may mention that there are two appeals pending before us.
The other appeal is from the revisional order of the High Court and we think that there is no need to pronounce any decision in that appeal, because it becomes infructuous by reason of our decision in this appeal.
As the appeal before.
the High Court is an old one, we hope that the High Court will be able to give it priority.
Appeal remitted.

summary/full:
The appellant 's suit against the respondent for rendition of account and other reliefs was valued at Rs. 5,930/ for purposes of court fee and jurisdiction.
The suit was decreed in part and the amount decreed was less.
than the amount at which he stated his tentative valuation.
He filed an appeal to the District Court stating the valuation for purposes of appeal at Rs. 4,880 '/ .
The memorandum of appeal showed the valuation in the original suit and the court fee paid was the same amount as in the trial court.
The District Court returned the memorandum of appeal for presentation to the proper court because, under section 39 '(1) of the Punjab Courts Act appeals above the value of Rs. 5,000/ had to filed before the High Court.
The appeal was filed in the High Court the same day, but it was out of time.
The appellant also filed a revision against the order of the District Court.
His counsel placed reliance on r. 4 in Ch.
3 B of Vol.
1 of the Rules of the High Court which states that "in a suit for the amount found due after taking accounts it is not the tentative valuation of the plaintiff but the amount found to be due and decreed by the court that determines the forum of appeal.
" The High .Court held that there was no ground for extending time under section 5 of the Limitation Act and dismissed the appeal and also the revision.
In appeal to this Court, HELD: The High Court should have extended time under section 5 of the Limitation Act.
[9 '4 A B] (i) The appellant did not have any underhand motive in filing the appeal before the District Court, the filing had to be attributed entirely to the advice of his counsel.
[93 A B] There is no general proposition that mistake of counsel by itself is always a sufficient ground for condoning delay.
It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose.
[92 F G] In the present case the original valuation determined the court of lowest denomination before which the appeal from the suit had to go and that forum was the High Court.
The counsel seems to have been misled by r. 4 in Ch.
3 B of Vol. 1 of the Rules and Orders of the High Court.
This rule is applicable in a case where the amount decreed is larger than the amount for which the original suit was brought.
It does not apply where the amount decreed is below the valuation in the original court.
There is nothing in the case to show that the error committed by the counsel was tainted by any mala fide motive.
[93 C F; 94 A]


judgement:
minal Appeal No. 170 of 1967.
Appeal by special leave from the judgment and order dated October 25, 1966 of the Bombay High Court in Criminal Appeal No. 805 of 1965.
S.S. Kavalekar, K. Rajendra Chaudhuri and K.R. Chaudhuri, for the appellant.
H.R. Khanna, B.D. Sharma and S.P. Nayar, for respondent No.1.
The Judgment of the Court was delivered by P. Jaganmohan Reddy, J.
This appeal is by special leave directed against the judgment of the Bombay High Court.
81 The appellant is the author of a short story entitled Shama published in the 1962 Diwali Issue of Rambha, a monthly Marathi Magazine, which story is said to be obscene.
Criminal proceedings were, therefore, initiated before the first class Magistrate, Poona by the complainant Bhide under section 292 I.P.C. against the Printer and Publisher accused 1, the writer of the story accused 2 and the selling agent accused 3.
The complainant stated that he had read the aforesaid Diwali issue of Rambha and found many articles and pictures in it to be obscene which are calculated to corrupt and deprave the minds of the readers in general and the young readers in particular.
The Complainant further relented to several other articles in the same issue such as the story of Savitri and certain cartoons but we are not now concerned with these because both the Magistrate as well the High Court did not think that they offended the provisions of section 292 I.P.C. the magistrate after an exhaustive consideration did not find the accused guilty of the offence with which they were charged and, therefore, acquitted them.
The complainant and the State filed appeals against this judgment of acquittal.
Before the High Court it was conceded that there was no evidence that accused No. 3 had sold any copies of the issues of Rambha and accordingly the order of acquittal in his favour was confirmed.
In so far as the other two accused are concerned it reversed the order of acquittal and convicted the printer and publisher accused 1 and the writer accused 2 under section 292 I.P.C. but taking into consideration the degree of obscenity in the passages complained of a fine Rs. 25/ only was imposed on each of the accused and in default they were directed to suffer simple imprisonment for a week.
It was also directed that copies of the magazine Rambha in which the offending story was published and which may be in possession and power of the two accused be destroyed.
The allegation, against the accused is that certain passages in the story of Shama at pp.
111 112, 114, 116, 118 121, 127, 128, 131, and 134 are said to be obscene.
In support of this the complainant examined himself and led the evidence of Dr. P.G. Sahstrabudhe and Dr. G.V. Purohit in support of his allegation that the novel is obscene and that the writer and publisher contravened the provisions of section 292 I.P.C. Accused No. 1 stated that the story of Shama was written by an ;able writer which depicted the frustration in the life of a poet and denied that it was obscene.
The writer Kakodar, accused No. 2 claims to have written about 60 such stories.
which are published in different periodicals by reputed publishers.
He also denies that Shama is obscene and states that he has introduced certain characters in order to condemn the worst and glorify the best and it was never his intention to titillate the sex feelings of the 82 readers, but on the other hand his attempt was to achieve the literary and artistic standard which was in keeping with the style of some of the able and successful writers of Marathi literature.
In support of his defence, he examined Shri Keluskar and Prof. Madho Manohar D.Ws. 1 and 2 respectively.
The Court on its own summoned and examined Prof. N.S. Phadke and Acharya P.K. Atre.
Both the magistrate as well as the learned Judge of the High Court were conversant with Marathi and they seem to have read the story of Shama in the original, an advantage which we have not got.
However, on a consideration of the offending passages in the story to which we shall refer presently, they came to different and opposite conclusions.
It is apparent that the question whether a particular article or story or book is obscene or not does not altogether depend on oral evidence because it is the duty of the court to ascertain whether the book or story or any passage or passages therein offend the provisions of section 292.
Even so as the question of obscenity may have to be judged in the light of the claim that the work has a predominant literary merit, it may be necessary if it is at all required, to rely to a certain extent on the evidence and views of leading litterateurs on that aspect particularly when the work is in a language with which the Court is not conversant.
Often a translation may not bring out the delicate nuances of the literary art in the story as it does in the language in which it is written and in those circumstances what is said about its literary quality and worth by persons competent to speak may be of value, though as was said in an earlier decision, the verdict as to whether the book or article or story considered as a whole panders to the prurient and is obscene must be judged by the courts and ultimately by this Court.
What is obscenity has not been defined either in section 292 IPC or in any of the statutes prohibiting and penalising mailing, importing, exporting, publishing and selling of obscene matters.
The test that has been generally applied in this country was that laid down by Cockburn, C.J. in Hicklin 's case(1) and even after the inauguration of the Constitution and considered in relation to the fundamental right of freedom of speech and expression this test, it has been held, should not be discarded.
In Hicklin 's case(1) while construing statutes 20 and 21 Victoria, a measure enacted against Obscene books, Cockburn, C.J. formulated the test in these words: "I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands publication of (1) 83 this sort may fail.
It is quite certain that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thought of most impure and libidinous character.
" This Court has in Udeshi vs State of Maharashtra(1) considered the above test and also the test laid down in certain other American cases.
Hidayatullah, J. as he then was, at the outset pointed out that it is not easy to lay down a true test because "art has such varied facets and such individualistic appeals that in the same object the insensitive sees only obscenity because his attention is arrested, not by the general or artistic appeal or message which he cannot comprehend, but by what he can see, and the intellectual sees beauty and art but nothing gross.
" It was also pointed out in that decision at p. 74, "None has so far attempted a definition of obscenity because the meaning can be laid bare without attempting a definition by describing what must be looked for.
It may, however, be said at once that treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more.
It is not necessary that the angels and saints of Michelangelo should be made to wear breeches before they can be viewed.
If the rigid test of treating with sex as the minimum ingredient were accepted hardly any writer of fiction today would escape the fate Lawrence had in his days.
Half the book shops would close and the other half would deal in nothing but moral and religious books which Lord Campbell boasted was the effect of his Act.
" It is, therefore, the duty of the court to consider the obscene matter by taking an overall view of the entire work and to determine whether the obscene passages are so likely to deprave and corrupt those whose minds are open to such influences and in whose hands the book is likely to fail and in doing so one must not overlook the influences of the book on the social morality of our contemporary society.
We can do no better than to refer to this aspect in the language of Hidayatullah, J. at p. 76: "An overall view of the obscene matter in the setting of the whole work would, of course, be necessary, but the obscene matter must be considered by itself and separately to find out whether it is so gross and its obscenity so decided that it is likely to deprave and corrupt those whose minds are open to influences of this sort and into whose hands the book is likely to fall." (1) ; 84 Referring to the attempt which our national and regional languages are making to strengthen themselves by new literary standards after a deadening period under the impact of English, it was further observed at p. 77, "that where obscenity and art are mixed, art must so preponderate as to throw the obscenity into a shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked.
In other words, treating with sex in a manner offensive to public decency and morality (and these are the words of our Fundamental Law), judged of by our national standards and considered likely to pander to lascivious, prurient or sexually precocious minds, must determine the result.
We need not attempt to bowdlerize all literature and thus rob speech and expression of freedom.
A balance should be maintained between freedom of speech and expression and public decency and morality but when the latter is substantially transgressed the former must give way.
" Bearing in mind these observations and the tests laid down in Udeshi 's case,(1) we propose to examine, having regard to our national standards, the passages in Shama to ascertain in the light of the work as a whole whether the treat with sex in such a way as to be offensive to public decency and morality as can be considered likely to pander to lascivious, prurient or sexually precocious minds.
The second appellant writes about the life of a poet Nishikant who left school in the days of freedom struggle, wrote revolutionary poems, but as the freedom struggle waned he did not join school as others had done notwithstanding his brother 's advice that he should pass the metric so that he could be employed in service.
As he was mostly unemployed, he was living on his brother and on the bounty of his sister in law who was kind and considerate to him.
Nishikant, it will appear, is emotional, sensitive and has the power to discern right from wrong.
The story starts ,with his being employed as a teacher and his meeting Sharma, the ' Music teacher in the school.
His attraction for her and the opportunity she gives him to meet her alone in her room fills him with a sense of foreboding lest he may have to endure the pangs of suffering which he had to undergo.
in his two earlier affairs with Neela and Vanira.
The poet recalls these two affairs individually and we get the impression that the pain which he underwent should not be repeated.
It is more as a repellent to any further involvement with Shama that these experiences are related.
(1) ; 85 Neela who is about 17 years of age is the daughter 015 a distant maternal cousin of his mother.
As she had reached the marriageable age, her father in Goa, Wasudeo who always treated Nishikant 's mother like his own sister is anxious to get her married to some eligible youngman, but evidently the opportunity for choosing the right person was remote.
So he suggests to Nishikant 's mother that Nishikant should come and bring Neela to Bombay to live with them where they would have better opportunity of choosing a youngman for her to be married.
Nishikant who was appointed in a newspaper office was at first reluctant but his sister in law persuades him and so he goes to Goa.
When he meets Neela, she had changed and was not as ugly as when he had seen her earlier.
The author then depicts the slow but steady maturing of the love between them, the seeking of and getting of opportunities to be near to each other, their having to sleep in the same bed while on the boat coming to Bombay and ultimately falling in love with each other which developed during Neela 's stay in Bombay.
During Neela 's stay with Nishikant 's family the love between her and Nishikant became intense as a result Nishikant proposes to marry her and writes to her father for his consent.
They wait for a reply but unknown to Nishikant, Neela receives a reply from her father rejecting the proposal on the ground that Nishikant is unemployed and would not join Government service even though he had suggested it to him.
He says in that letter that poetry may bring him fame but would not give him a livelihood.
As he was entirely dependant on his brother for his maintenance, the father refused to give his consent in the interest of Neela 's happiness and told her that he was coming back to fetch her.
As Neela was in love with Nishikant but she knew that she would not be married to him, she encourages him to bring their love to culmination.
This state of affairs lasted for a few days before her father took her away.
About two months later Nishikant receives an invitation card for Neela 's marriage and thereafter he received another letter written by Wasudeo to his daughter to which we have earlier referred and which also.
contained at the back of it Neela 's message to Nishikant asking him to forget her.
Even after four years he was unable to forget Neela and had taken to drinking and coming home late.
He was idle for long spells and whenever he thought of Neela he wrote a poem.
Then one day he was introduced to Vanita who was a graduate and a married woman who had left her husband.
She was a critic of stories and novels.
When they met, she had praised his poems and had invited him to come to.
her room ostensibly to discuss his poetry.
Vanita is shown as an oversaxed woman, experienced and forward, making advances and suggestions.
Ultimately she and Nishikant have several affairs till one morning 86 he finds that the person who had introduced her to him was coming out of her room and when he went in he found Vanita sleeping naked.
His spirit revolted seeing her in that condition.
He was greatly upset at her recalcitrance when he asked her how many more men she had.
She replied that it had nothing to do with him, that he had got what he wanted and she does not want to be a slave to any person.
He retorted with indignation that he did not wish to see her face and walked out.
He had then made up his mind not to have any relations with any woman.
It was with such unpleasant experiences that when he met Shama and was attracted to her he was hesitating and avoiding meeting her alone but circumstances conspired to bring them together and again another affair developed between them.
He encourages Shama to sing, writes lyrics for her songs and when she gives a performance in school he arranges for a radio and gramophone representatives to be present there.
Her music was appreciated and she began to get audition from these sources.
It appears one of the school teacher Kale had earlier attempted to make love to Shama and she had slapped him.
When Kale informs Nishikant that he knows about his affairs with Shama, Nishikant gets angry and tells him that he knows how he was slapped by Shama for making advances to her.
This enraged Kale and he seems to have taken his revenge by maligning the character of Shama to the Principal.
As a result of this, the Principal dismissed her.
Hearing this, Nishikant gets angry, goes to the Headmaster and accuses him of being an accomplice of Kale and leaves the service.
He then persuades Shama to start a music school, later gets her engagements in films as a playback singer for which he was asked to write lyrics.
Shama 's reputation as a singer grows rapidly in the Marathi public.
It was then that her uncle knowing of it comes to see her and makes insinuations against Nishikant who is offended and hurt because Shama does not prevent her uncle but listens to him without a demur.
Periodical quarrels are witnessed because Shama becomes more status minded, begins to think of her wealth and position and moves into wealthy quarters all of which are against Nishikant 's outlook and temperament.
Both began to fall apart and the visits of Nishikant to Shama became rare.
Even though Nishikant lives in poverty, he is too proud to ask her money and is not willing to live with her on her conditions.
He stays away from her, showing that he has pride, self respect and spirit of sacrifice.
Suddenly a realisation comes to Shama that she had wronged Nishikant and that she owed everything to him, and therefore has an intense desire for reconciliation.
In this state of affairs When she hears that he is taking part in the Kavi Samelan on the radio she gets into the car and asks her driver to drive fast 87 to the radio station.
On tiffs pitch of expectant reconciliation and ultimate reunion the story ends.
The story read as a whole does not, in our view, amount to its being a pornography nor does it pander to the prurient interest.
It may not be of a very high literary quality and may show immaturity and insufficient experience of the writer, but in none of the passages referred to by the complainant do we find anything offending public order or morality.
The High Court itself did not consider the description of Neela when Nishikant meets her in Goa (at p. 107) objectionable, nor the narration and the description of the situation which is created for Nishikant and Neela on the way back to Bombay from Goa when for want of room they had to sleep on a single bed (p. 112) as obscene.
The passages at pp.
112, 114, 119 120 and 131 have been found by the High Court to come within the mischief of section 292 I.P.C. We have been taken through the corresponding passages in the English translation and even allowing for the translation not bringing out the literary or artistic refinement of the original language, we find little in these passages which could be said to deprave or corrupt those in whose hands the book is likely to fall, nor can it be said that any of the passages advocates, as the High Court seems to think, a licentious behaviour depraving and corrupting the morals of adolescent youth.
We do not think that it can be said with any assurance that merely because adolescent youth read situations of the type presented in the book, they would become depraved, debased and encouraged to lasciviousness.
It is possible that they may come across such situations in life and may have to face them.
But if a narration or description of similar situations is given in a setting emphasising a strong moral to be drawn from it and condemns the conduct of the erring party as wrong and loathsome it cannot be said that they have a likelihood of corrupting the morals of those in whose hands it is likely to fall particularly the adolescent.
In the passage at pp.
113 114 Nishikant takes Neela out to show the sights of the city of Bombay but instead takes her to a picture where after the lights go off, seeing a soldier and his girl friend in front kissing, they also indulge in kissing.
Then as we said earlier, when the love between them develops Nishikant wanted to marry but the father of the girl was unwilling.
Neela realising that their love could never be consummated encourages him to bring it to a culmination.
In this way they enjoy unmarried bliss for a few days until Neela 's father takes her away.
We agree with the learned Judge of the High Court that there is nothing in this or in the subsequent passages relating to Neela, Vanita and Shama which amounts to poronography nor has the author indulged in a description of the sex act or used any 88 language which can be classed as vulgar.
Whatever has been done is done in a restrained manner though in some places there may have been an exhibition of bad taste, leaving it to the more experienced to draw the inferences, but certainly not sufficient to suggest to the adolescent anything which is depraving or lascivious.
To the literate public there are available both to the adults and the adolescents innumerable books which contain references to sex.
Their purpose is not, and they have not the effect of stimulating sex impulses in the reader but may form part of a work of art or are intended to propagate ideas or to install a moral.
The concept of obscenity would differ from country to country depending on the standards of morals of contemporary society.
What is considered as a piece of literature in France may be obscene in England and what is considered in both countries as not harmful to public order and morals may be obscene in our country.
But to insist that the standard should always be/or the writer to see that the adolescent ought not to be brought into contact with sex or that if they read any references to sex in what is written whether that is the dominant theme or not they would be affected, would be to require authors to write books only for the adolescent and not for the adults.
In early English writings authors wrote only with unmarried girls in view but society has changed since then to allow litterateurs and artists to give expression to their ideas, emotions and objectives with full freedom except that is should not fall within the definition of 'obscene ' having regard to the standards of contemporary society in which it is read.
The standards of contemporary society in India are also fast changing.
The adults and adolescents have available to them a large number of classics, novels, stories and pieces, of literature which have a content of sex, love and romance.
observed in Udeshi 's(1) case if a reference to sex by itself is considered obscene, no books can be sold except those which are purely religious.
In the field of art and cinema also the adolescent is.
shown situations which even a quarter of a century ago would be considered derogatory to public morality, but having regard to changed conditions are more taken for granted without in anyway tending to debase or debauch the mind.
What we have to see is that whether a class, not an isolated case, into whose hands the book, article or story falls suffer in their moral outlook or become depraved by reading it or might have impure and lecherous thought aroused in their minds.
The charge of obscenity must, therefore, be judged from this aspect.
We do not think that any of the impugned passages which have been held by the High Court as offending section 292 I.P.C. can (1) ; 89 be said to pervert the morals of the adolescent or be considered to be obscene.
In this view, we allow the appeal, set aside the conviction and fine.
The fine if paid is directed to be refunded.
R.K.P.S. Appeal allowed.

summary/full:
The appellant, the author of a short story and the printer and publisher of the story were convicted under section 292 I.P.C. on a charge of obscenity.
Setting aside the conviction this Court, HELD: It is the duty of the Court to consider the article, story or book by taking an overall view of the entire work and to determine whether the obscene passages are so likely to deprave and corrupt those whose minds are open to such influences and in whose hands the book is likely to fall; and in doing so the influence of the book on the social morality of our contemporary society cannot be overlooked.
Even so as the question of obscenity may have to be judged in the light of the claim that the work has a predominant literary merit, it may be necessary if it is at all required, to rely to a certain extent on the evidence and views of leading litterateurs on that aspect.
[82 D; 83 E G] To insist that the standard would always be for the writer to see that the adolescent ought not to be brought into contact with sex or that if they read any references to sex in what is written, whether that is the dominant theme or not, they would be affected, would be to require the authors to write books only for the adolescent and not for the adults What has to be seen is that whether a class, not an isolated case, into whose hands the book, article or story falls suffer in their moral outlook or become depraved by reading it or might have impure or lecherous thoughts aroused in their minds.
The charge of obscenity must, therefore, be judged from this aspect.
[88 D, G H] Ranjit D '.
Udeshi vs State of Maharashtra ; followed.
Applying the above tests the story read as a whole did not amount to its being pornography nor did it pander to the prurient interest.
[87 A B]


judgement:
Appeal No. 2195 of 1968.
Appeal from the judgment and order dated September 12, 1968 of the Delhi High Court in Letters Patent Appeal No. 34 of 1968.
Shyamala Pappu and Vineet Kumar, for the appellant.
D.D. Chawla, Bishamber Lal and H.K. Puri, for respondent No. 1.
C.J. One of the items at a meeting of the Delhi Corporation held on April 24, 1967 was the election of two of its representatives on the Delhi Development Authority.
Three candidates had filed nomination papers: they were Kishori Lal, Kedar Nath Sahni and Surat Singh.
It was objected that Kishori Lal was interested in the business of development of land in Delhi as a shareholder and also as a Director of Capital Land Builders (Private) Ltd. Kishori Lal denied that he was so interested.
The Mayor of Delhi who presided at the meeting rejected the nomination paper on the ground that Kishori Lal was interested in the business of sale and purchase of land in Delhi and was on that account disqualified to be a member of the Delhi Development Authority.
The two candidates who remained in the field were declared duly elected by the Mayor.
In a petition under Article 226 of the Constitution filed by Kishori Lal, Deshpande, J. of the High Court of Delhi quashed 61 the order of the Mayor rejecting the: nomination paper of Kishori Lal and declaring illegal the election of Surat Singh and Kedar Nath Sahni as representatives of the Corporation on the Delhi Development Authority.
The learned Judge directed that another election be held according to law.
Against the decision of Deshpande, J. appeals were preferred by the Mayor of the Corporation of Delhi and by Surat Singh.
The High Court confirmed the order passed by Deshpande, J. With certificate granted by the High Court this appeal is preferred by Surat Singh.
The Mayor has not preferred any appeal.
Two contentions are urged in support of this appeal: (1) that the Mayor was under the provisions of the Delhi Corporation Act and the rules framed thereunder competent to reject the nomination, power in that behalf having been conferred upon him; and (2) in any case, objection against nomination amounted to raising a point of order, and the ruling of the Mayo.r on the point of order was by rule 33 of the Delhi Municipal Corporation (Procedure and Conduct of Business) Regulations, 1958, final.
The Delhi Development Authority is constituted under section 3 of the Delhi Development Act 61 of 1957.
Members of the Authority are elected or nominated from different sources.
Two of the members of the authority are to be the representatives of the Municipal Corporation of Delhi, elected by the Councillors and Aldermen of the Corporation from among themselves.
Rules were framed by the Central Government in exercise of the power conferred by section 56 of the Delhi Development Act 61 of 1957 called the "Delhi Development Authority Rules, 1958".
By rule 3 (1 )(e) a person is disqualified for being chosen as, or for being, a member of the Authority if he is interested directly or indirectly in any business of development of land in Delhi.
The Central Government has framed another set of rules under section 56 of the Delhi Development Act, called the Delhi Development Authority (Election of Representatives of Delhi Municipal Corporation) Rules, 1958.
Rule 2, insofar as it is relevant, provides: "( 1 ) The Election of the representatives of the Municipal Corporation of Delhi .
in pursuance of clause (e) of sub section (3) of section 3 of the Delhi Development Act, 1957 (61 of 1957), shall be held at a meeting of the Corporation in accordance with the system of 62 proportional representation by means of the single transferable vote and the voting at such election shall be by secret ballot.
(2) Every candidate for election as such representative shall be nominated by a nomination paper in Form 1 which shall be signed by the candidate and two other members of the Corporation as proposer and seconder and delivered to the Municipal Secretary . . (3) No member of the Corporation shall sign as proposer or seconder the nomination of more candidates than the number of representatives to be elected.
Any nomination paper subscribed in contravention of this sub rule shall be invalid and shall be declared as such by the Mayor.
(4) (5) Where the number of validly nominated candidates is equal to, or less than, the number of representatives to be elected, the Mayor shall declare all such candidates to be duly elected as representatives of the Corporation, and where the number of validly nominated candidates is more than the number of representatives to be elected, a poll shall be taken.
" Clauses (6), (7), (8), (9), (10) and (11) provide for the method of polling and the declaration of the result of the poll.
But the Act and the rules contain no machinery for setting aside an election to the Delhi Development Authority.
It is common ground that the Delhi Corporation Act, 1957 and the rules framed by the Central Government under section 56 of the Delhi Development Act, 1957 d9 not contain any express provision authorising the Mayor to reject the nomination.
It was contended however, that the use of the.
expression "validly nominated candidates" in cl.
(5 ) of r. 2 of the Delhi Development Authority (Election of Representatives of Delhi Municipal Corporation) Rules, 1958 implies that the Mayor has the power to determine whether a person is validly nominated, and in determining whether he is validly nominated the Mayor has to consider not only whether the requirements of clauses (2) & (3) are complied with, but whether the candidate nominated is subject to any disqualification.
In our judgment the expression "validly nominated" occurring in sub r.
(5) of r. 2 of the Election Rules, 1958, implies that the Mayor may determine whether 63 the requirements of cls.
(2) and (3) are satisfied.
The Mayor cannot obviously hold a detailed enquiry having regard to the terms of r. 3 of the Delhi Development Authority Rules to ascertain whether the candidate is subject to any of the disqualifications set out in that rule.
The Rules provide for diverse grounds of disqualification from membership of the Authority.
A person is unsound mind and stands so declared by a competent court; if he is an undischarged insolvent; if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State; if he is a licensed architect, draughts man, engineer, plumber, surveyor or town planner or employee of a firm of which any such licensed person is also a partner; if he is interested, directly or indirectly in any business of development of land in Delhi; if he is interested in any subsisting contract made with, or any work being done for, the Authority except as a shareholder (other than a director) in an incorporated company or as a member of co operative society; if he is retained or employed in any professional capacity either personally or in the name of a firm of which he is a partner or with which he is engaged in a professional capacity, in connection with any cause or proceeding in which the Authority is interested or concerned; if he, having held any office under the Government, has been dismissed for corruption or disloyalty to the State within a period of four years; and if he fails to pay any arrears of any kind due by him, otherwise than as an agent, receiver, trustee an executor, to the Authority within three months after a notice in that behalf has been served upon him.
By cl.
(j) of r. 3 in the prescribed eventualities disqualifications do not operate.
Normally the Mayor cannot in the absence of an express provision hold an enquiry in a meeting of the Corporation into the several matters contemplated by r. 3 before he accepts the nomination paper.
In our judgment the High Court was right in holding that the Mayor was not competent under the Rules to determine whether a candidate: was under a disqualification at the date of nomination.
The other argument raised by counsel for the appellant also has no substance.
Objection to the nomination of Kishori Lal was not raised and could not be raised as a point of order at the meeting.
Rule 33 of the Delhi Municipal Corporation (Procedure and Conduct of Business) Regulations, 1958provides: "Any member may at any time during the meeting of the Corporation submit a point of order for the decision of the Mayor, but in doing so shall confine himself to stating the point and the Mayor shall decide all points of order which may arise or be referred to him and his decision shall be final".
64 A point of order includes an objection raised by a member at a meeting for breaches of the Rules or regulations, to some defect in the constitution of the meeting (e.g. absence of a quorum), to the use of offensive or abusive language, or to invite.
the attention of the presiding officer that the motion under discussion is not within the scope of the notice, or to any similar infirmity or irregularity in the proceeding.
In addition to breaches of the general or special rules use of insulting or bad language, gross accusations or insinuation and unseemly or contemptible conduct may be taken exception to in this manner.
(Law and Practice Relating to Meetings.
F. Shackleton.
p. 97, 5th Edition).
A point of order is primarily intended to determine the interpretation of the rules and regulations governing the meeting: it does not contemplate any discussion on any event.
It cannot, therefore, be in the form of an objection to the competence of a member to stand for election to a Committee.
By the, Delhi Development Authority Rules, existence of any of the disabilities referred to in r. 3 constitutes a disqualification.
A claim that a candidate is subject to a disqualification cannot be decided without evidence and discussion: such an objection cannot, therefore, form the subject of a point of order.
Rule 33 has made the decision of the Mayor final.
But it is not intended thereby that a member may be declared disqualified by an order made without calling for evidence and without discussion, and by the mere fiat of the Mayor.
Nor is it intended to remove an existing disqualification of a member without ,evidence and without discussion.
The argument that objection to the nomination paper of Kishori Lal was raised by way of a point of order was never raised in the petition and it is clear from the proceedings of the meeting that it was not treated as a point of order.
Even if it be grated that the objection was raised and decided by the Mayor as a 'point of order jurisdiction of the civil court to determine the existence of a statutory disqualification cannot on that account be excluded.
The finality is only for the purpose of the procedure and conduct of the meeting and confers no rights upon any person.
Whether Kishori Lal was at the date of nomination disqualified from being elected a member of the Delhi Development Authority will therefore have to be decided in an appropriate proceeding if he is declared elected at an election held according to law.
The appeal fails and is dismissed with costs.
1 V.P.S. Appeal dismissed.

summary/full:
The Delhi Development Authority is constituted under section 3 of the Delhi Development Act, 1957.
Two. of the members of the Authority 'are to be representatives of the Municipal Corporation of Delhi, elected by the Councillors and Aldermen of the Corporation from among themselves.
Rule 3(1) of the Delhi Development Authority Rules, 1958, passed under the Act, prescribes various grounds of disqualification for being a member of the Authority.
Under r. 3 (1 )(e) a person is disqualified if he is interested directly or indirectly in any business of development of land in Delhi.
The appellant, first respondent, and another, filed nomination papers for being elected to the Delhi Development Authority as representatives of the Municipal Corporation of Delhi.
On an objection that the first respondent was disqualified because.
he was interested in the business of development of land in Delhi, the Mayor of Delhi, who presided at the meeting, rejected the nomination paper of the first respondent 'and declared the two remaining candidates elected.
The first respondent thereupon filed & writ petition in the High Court which was allowed.
In appeal to this Court, it was contended: (1 ) That under r. 2(5) of the Delhi Development Authority (Election of Representatives of Delhi Municipal Corporation) Rules, 1958, framed under the Delhi Development Act, when the number of validly nominated candidates is equal or less than the number of representatives to be elected the Mayor shall declare all such candidates to be duly elected, and if the number of validly nominated candidates is more, a roll shall be taken, that the expression 'validly nominated candidates ' implies that the Mayor has the power to determine whether a person is validly nominated, and for this purpose, the: Mayor could consider not only whether the requirements of nomination in cls.
(2) and (3) are complied with, but also, whether he is subject to any disqualification; and (2) That the objection about the first respondent amounted to raising a point of order and the decision of the Mayor on a point of order was final under reg. 33 of the Delhi Municipal Corporation (Procedure and Conduct of Business) Regulations, 1958.
HELD: (1) The Delhi Development Act and the various rules made thereunder contain no machinery for setting aside an election to the Delhi Development Authority nor do they contain an express provision authorising the Mayor to hold an inquiry and reject a nomination.
In the absence of such an express provision the Mayor could not, at a meeting of the Corporation, hold an inquiry to ascertain whether a candidate was subject to any of the disqualifications set out in r. 3 of the Delhi Development Authority Rules.
The expression validly nominated in r. 2(5) of the Election of Representatives Rules, implies only that a Mayor may determine whether the requirements of els.
(2) and (3) of r. 2 are satisfied and not to determine whether a candidate.
was under a disqualification at the date of nomination.
F G H; 63 A B, F] (2) A point of order is primarily intended to determine the interpretation of the rules and regulations governing a meeting and objections in relation to a meeting.
It does not include an objection to the competence of a member to stand for election to a Committee.
In fact, the objection to the nomination of the respondent was never raised as a point of order.
[64 C D, F] Even if it be assumed that the objection was raised and decided by the Mayor as a point of order, the Mayor could not do so by his mere fiat without calling for evidence and without discussion.
The finality contemplated by reg. 33 is only for the purpose of procedure and conduct of meetings.
[64 E] Therefore, whether the first respondent was at the date of nomination disqualified from being elected a member of the Delhi Development Authority could only be decided in an appropriate proceeding in a civil court after he was elected.


judgement:
Appeal No. 1156 of 1967.
Appeal from the judgment and decree dated January 6, 1967 of the Punjab and Haryana High Court in Civil Regular First Appeal No. 152 of 1958.
Brij Bans Kishore, Mahabir Prasad Jain and J.P. Gupta ', for the appellants.
V.C. Mahajan and M.S. Gupta, for respondent Nos. 1 and 2.
The Judgment of the Court was delivered by Dua, J.
This appeal on certificate has been preferred by one set of pre emptors (plaintiffs in suit No. 556 of 1958) against the judgment and decree of the High Court of Punjab and Haryana allowing the rival plaintiffs pre emptors ' appeal by reducing the pre emption money and passing a decree of pre emption on payment of Rs. 1,05,800/ instead of Rs. 1,35,000/ as directed by the trial Court.
On behalf of the rival pre emptors (plaintiffs in suit No. 558 of 1958) who are arrayed as respondents 1 to 3 in this Court, a preliminary objection was taken to the competency of the present appeal.
The appellants ' right to appeal was challenged on the ground that the amendment of the Punjab Pre emption Act (hereinafter called the Act) by the Punjab Act X of 1960 had deprived them of their right of pre emption with retrospective effect.
The appellants had based their right of pre emption in their suit on the ground of their being proprietors of the village.
They were deprived of this right by the Amending Act of 1960 and section 31 of 131 the Act as amended made the amendment retrospective in its operation by prohibiting the Courts from passing decrees inconsistent with the Amended Act.
The right of respondents 1 to 3 who had sued as sons of the vendors remained undisturbed by the amendment.
It was on this basis that the preliminary objection was pressed before us.
The facts relevant for the present appeal may now briefly be stated.
The land in suit was sold by a registered sale deed on June 18, 1957 by Kashi, Harchand and Bhagoo (respondents 4 to 6 in this Court) to respondents 7 to 18 for an ostensible consideration of Rs. 1,35,000/ .
The appellants and respondents 1 to 3 instituted two separate suits for pre emption in respect of this sale.
In both the suits the sale price as inserted in the sale deed was questioned.
The two suits were consolidated and the plaintiffs in each suit were joined as defendants in the other suit as contemplated by section 28 of the Act.
It appears that on April 28, 1958, a statement was made on behalf of the vendees admitting the right of the pre emptors in both the suits and conceding that a decree be passed in favour of respondents 1 to 3 in the first instance and on their failure to pay the amount, the appellants be held entitled to a decree on payment of Rs. 1,35,000/ .
Apparently all other objections raised by the vendees to the right of the pre emptors were dropped.
Counsel for the appellants also made a statement expressing his willingness to pay a sum of Rs. 1,35,000/ .
Counsel for the respondents 1 to 3 however did not accept the amount of consideration as entered in the sale deed and wanted the issue in regard to the pre emption money to be decided on the merits.
The trial Court by its judgment and decree dated June 30, 1958 granted to the plaintiffs in both the suits a decree in the following terms: "It is ordered that a decree is granted to the plaintiffs for possession of land in suit by pre emption on payment of Rs. 1,35,000/ on the condition that the plaintiffs deposit this amount in the court for payment to the vendees defendants within one month on or before 30th July, 1958, otherwise this suit shall stand dismissed.
In case of default by the plaintiffs Godhu etc.
Moola and other rival pre emptors, who are plaintiffs in suit No. 556 of 1958 shall be entitled to deposit the above amount as pre emption money on or before 30th October, 1958, and get the possession of the land in suit.
" This decree was apparently framed in the light of the provisions of section 28 of the Act and Order 20 ', r. 14, C.P.C. Section 28 which provides for concurrent hearing of two or more suits for pre empting the same sale lays down that each decree shall state the order in which each claimant is entitled to exercise his right of pre emption.
Order 20 r. 14( 1 )(a) lays down that the decree 132 in a pre emption suit shall, when purchase money has not been paid in the Court, specify a day on or before which the same shall be paid and Order 20 r. 14(2)(b) provides inter alia that in so far as the claims decreed are different in degree, the claim of the inferior pre emptor shall not take effect unless and until the superior pre emptor has failed to comply with the provisions of sub rule 1.
Respondents 1 to 3, feeling dissatisfied with the decision on the amount of deposit to be made, preferred an appeal to the Punjab High Court.
On January 6, 1967 the High Court allowed the appeal and reduced the amount of deposit to Rs. 1,05,800/ .
While framing the decree the High Court allowed the plaintiffs pre emptors a period of three months from January 6, 1967, for depositing in Court the amount of Rs. 1,05,800/ failing which their suit was directed to stand dismissed.
Nothing was stated in the decree as regards the claim of the appellants.
Attention of the High Court apparently does not seem to have been drawn to the provisions either of section 28 of the Act or of Order 20, r. 14, Civil P.C. or of para 3 of Chapter 1 M(c) at page 59 of Volume 1 of the Punjab High Court Rules and Orders.
Para 3 aforesaid emphasises the importance of specifying a definite date for the deposit of money in Court.
It may at this stage appropriately be observed that the omission to state in the decree the order in which the two rival claimants were entitled to exercise their right of pre emption might have been due either to the fact that the appellants (who were impleaded as respondents in the High Court) in view of section 31 as interpreted in Ram Swarup vs Munshi and Others(1) did not press their claim and did not ask for the inclusion of a direction regarding their right in the High Court decree, or to the fact that they may have felt that having expressed .their willingness in the trial Court to deposit Rs. 1,35,000/ it was no longer open to them to question this valuation.
It is also not unlikely that in view of the decision in Ram Swarup 's case(1) the High Court thought that the only right of pre emption subsisting on January 6, 1967 was that of respondents 1 to '3 and that there was, therefore, no occasion for making any consequential order in fax,our of the appellants under Order 41, r. 33 Civil P.C.
The judgment of the High Court does not contain any discussion on the point as to why no reference was made to the appellants ' claims.
It would certainly have been more helpful if the High Court had stated something in its judgment on this aspect.
In the circumstances of this case, however, we need say nothing more on this point.
It is against the decree of the High Court reducing the amount of deposit to be made by respondents 1 to 3 that the appellants (1) ; ? 133 pre emptors have come to this Court on appeal and their right to appeal is challenged on the ground that the existing law of preemption has retrospectively deprived them of their right to preempt by prohibiting the courts from passing a decree for pre emption inconsistent with the Act as amended.
The challenge seems to be well founded.
This Court had in Ram Swarup 's case(1) occasion to construe the effect of section 31 of the Act.
According to that decision, section 31 is plain and comprehensive enough to require an appellate court to give effect to the substantive provisions of the Amending Act whether the appeal before it is one against a decree granting pre emption or one refusing that relief.
Following the ratio of this decision it must be held that it is not open to this Court to pass a decree of pre emption in favour of the appellants who were deprived in 1960 of their right to secure such a decree in the present suit.
Indeed it was not open even to the High Court to pass a decree of pre emption in favour of the appellants on January 6, 1967 and the decree of that court is unexceptionable in this respect.
The argument that the appellants.
had already cured a decree in their favour by the trial Court, which decree has become final, and that they have fully complied with its terms and further that in the present appeal, they are merely seeking modification of the decree of the High Court in favour of respondents 1 to 3 by getting the amount of pre emption money enhanced to Rs. 1,35,000/ , without claiming any right of pre emption in their own favour, is unsustainable.
This argument ignores that the scheme of section 28 of the Act read with Order 20, r. 14, Civil P.C. does not postulate decrees of pre emption in favour of rival pre emptors on payment of different amounts of purchase money in respect of the same sale.
Such a course may lead to conflicting decisions on the question of value of the property sought to be pre empted for the purposes of pre emption suit.
Besides the appellants ' right to pre empt the sale under the unamended law was admittedly inferior to that of respondents 1 to 3 and the appellants could only be held entitled to exercise their right after the failure of the said respondents to comply with the terms of the decree in their favour.
The right of respondents 1 to 3 was determined by the High Court and it was claimed on their behalf at ' the Bar of this Court that they had already deposited the preemption money as required by the High Court decree.
Indeed this assertion was not disputed on behalf of the appellants.
We are accordingly unable to hold that the appellants have successfully executed the decree of pre emption in their favour.
The appellants further developed their argument by submitting that the decree passed by the trial Court in their favour was (1) 134 never appealed against and that the same has become final and binding on all parties.
The only appeal preferred by respondents 1 to 3, according to this submission was from the decree in their own suit, with the result that the decree in favour of the appellants passed by the trial Court in their suit has by now become conclusive and unassailable.
We cannot accept this submission.
There is nothing on the record to show that the appeal presented in the High Court by respondents 1 to 3 was directed against the decree passed in their suit.
Apparently, the appeal was filed against the decree passed in the consolidated suits dealing with the rights of both the rival pre emptors, and all the parties interested in the right of pre emption were impleaded in the appeal.
Besides, this contention seems to us to be only another way of putting the same argument, namely, that there can be two or more different determinations of the amount of pre emption money in the two consolidated suits for pre empting the sale in question.
It also postulates a claim by an inferior pre emptor to pre empt the sale by making the deposit of the pre emption money before the superior pre emptor has failed to comply with the terms of the decree in his favour.
This argument, as the foregoing discussion shows, is without merit.
In the present case, a further question arises as to whether or not it was open to the appellants to ask the High Court not to vary the determination of pre emption money in the appeal preferred by respondents 1 to 3 without formally preferring a separate appeal from the other decree considered to have been passed in the other suit because passing of such an inconsistent decree on appeal on the question of valuation would not be permissible in law.
No argument on these lines was addressed in the High Court.
The effect of this omission has not been canvassed in this Court either.
We would, therefore, express no opinion on this aspect.
The final decree relating to the rival claims of pre emption in respect of the sale in question, however, seems to be that of the High Court which may well be considered to be binding on all the parties to it.
And then, if the appellants ' claim that the decree passed in their favour by the trial Court in their suit has already become final and their right is unaffected by the decree of the High Court, then they cannot be considered to be aggrieved by the impugned decree, and, therefore, they cannot claim any locus standi to appeal against it.
From whichever point of view one looks at the position, the appellants cannot claim a right of appeal from the decree of the High Court determining the pre emption money to be Rs. 1 05,800, The right to appeal against that decree can only be exercised by a person whose claim of pre emption in respect of the sale in question can be considered to have been adversely affected by it.
The appellants on their own argument possess no such right.
135 The preliminary objection, therefore, succeeds and allowing the same we dismiss the appeal with costs.
Respondents 1 t0 3 claim to have deposited the amount within the time specified by the High Court and as the appellants do not as indeed cannot claim a decree in their favour from this Court, it becomes unnecessary for us to specify any date for the payment of such deposit.
R.K.P.S. Appeal dismissed.

summary/full:
After the land in suit was sold in June, 1957, for an ostensible sum of Rs. 1,35:000/ , the appellants and respondents 1 to 3 instituted two separate suits for pre emptions in which the sale price inserted in the sale deed was also questioned.
The two suits were consolidated and the plaintiffs in each suit were joined as defendants in the other suit under section 38 of Punjab Pre emption Act, 1913.
The vendees thereafter admitted the rights of preemptors in both the suits conceding that a decree may be passed in their favour.
The appellants accepted the sale price of Rs, 1,35,000 on or before 30th July 1958 and although respondents 1 to 3 wanted this issue to be decided on the merits, the trial court passed a decree in both the ,suits granting respondents 1 to 3 the right to preemption in the first instance on payment of Rs. 1,35,000 and, on their failure to so pay, holding the appellants entitled to exercise the right to pre emption on payment of the said amount on or before 30th October 1958.
In an appeal to the High Court, respondents 1 to 3 challenged the correctness of the amount of the deposit to be made.
Allowing the appeal, the High Court reduced the amount of deposit to Rs. 1,05,800/ and directed respondents 1 to 3 to deposit the amount within three months.
In an appeal by the appellants to this Court against the decision of the High Court, a preliminary objection was taken challenging the appelants right to appeal it was contended that the appellants had based their right to pre emption in their suit on the ground of their being proprietors of the village where the land was situated.
They were deprived of that right by the amendment of section 31 of the Punjab Pre emption Act by Punjab Act 10 of 1969 which amendment was retrospective in its operation and prohibited the Courts from passing any decree inconsistent with the amended Act.
On the other hand it was contended inter alia for the appellants that they had already secured a decree in their favour by the trial court which had become final 'and with the terms of which the had complied: in the present appeal they were merely seeking modification of the decree of the High Court in favour of respondents 1 to 3 by getting the amount of pre emption money enhanced t0 Rs. 1,35,000/ without claiming any rights of pre emption in their own favour furthermore, the only appeal preferred by respondents 1 to 3 to the High Court was from the decree in 'heir own suit and for this reason also the decree in favour of the appellants by the trial court had become conclusive and unassailable.
130 HELD: Upholding the preliminary objection, It was not open to this Court to pass a decree of pre emption in favour of the appellants who were deprived by the Amendment Act of 1960 of their right to secure such a decree.
[133 C D] The contention that the decree in the appellants ' suit had become final and the High Court 's order was only in relation to the suit of respondents 1 to 3 ignored the scheme of section 28 of the Act read with O.20, r. 14, C.P.C. which does not postulate decrees of pre emption in favour of rival preemptors on payment of different amounts of purchase money in respect of the same sale.
Such a course may lead to conflicting decisions on the question of value of the property sought to be pre empted for the purposes of a pre emption suit.
Besides., the appellants ' right to pre empted the sale under the unamended law was admittedly inferior to that of respondents 1 to 3 and the appellants could only be held entitled to exercise their right after the failure of those respondents to comply with the terms of the decree in their favour.
[133 E G] Ram Swarup vs Munshi and Others, ; ; referred to.