judgement:
Appeal No. 1059 of 1963.
Appeal from the judgment and order dated April 10, 1962 of the Punjab High Court in L.P. Appeal No. 312 of 1959.
B. Sen and R. N. Sachthey, for the appellant.
C. B. Agarwala, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the respondent.
The Judgment of the Court was delivered by Gajendragadkar, CJ.
This appeal raises a short question as to the content of the entry "Electrical, Mechanical or general engineering products" used in Schedule 1 to the Employees ' Provident Fund Act, 1952 (No. 19 of 1952) (hereinafter called the Act).
The respondent firm, Shibu Metal Works, runs a factory which manufactures brass utensils.
Under the Act and the scheme framed thereunder, the employer to whose factory the Act applies is required to deposit with the appellant, the Regional Provident Commissioner, his share of the contribution as well as that of the employees coupled with the administrative charges within 15 days of each succeeding month.
It appears that the respondent had been making such deposits in the past.
If the employer makes a delayed payment, the Government is entitled to impose damages not exceeding 25 per cent of the amounts payable by the employer.
In respect of the period between June, 1955 to October, 1955, and for the months of June, August, September and November, 1956, delayed payments were made by the respondent.
Thereupon, the appellant called upon the respondent to pay the damages.
The respondent, in turn, made explanations and contended that there was really no delay in the making of payments in regard to some months, and in respect of the others where delay was admitted, it claimed that the same should be condoned.
The appellant did not accept either of the pleas raised by the respondent, and demanded the payment of damages.
That led to the present writ proceedings, commenced by the respondent in the High Court of Punjab.
In its writ petition filed on the 3rd November, 1958, the respondent contended that the appellant was not entitled to recover either the contributions alleged to be due under the Act or Sup./65 6 74 damages alleged to be due on the ground that there was delay in payment, because the manufacture of brass utensils which was the work carried on in the respondents factory did not come within the purview of the Act.
On this ground, the respondent urged that the demand made by the appellant was illegal, ultra vires and without jurisdiction.
The writ petition asked for the issue of a writ of mandamus restraining the appellant from recovering any amount from the respondent under the Act.
The appellant resisted the writ petition and urged that the entry "Electrical, Mechanical or general engineering products" included manufacture of brass utensils, and so, the respondent 's factory fell within the purview of the Act.
The appellant also urged that if the respondent entertained any doubt as to the applicability of the Act to its factory, it should have approached the Central Government for removal of the doubt and not rushed to the court for a judgment.
The learned Single Judge who heard the writ petition held that the manufacture of brass utensils fell within the provisions of the relevant entry in Sch. 1, because, in his opinion, the said utensils were, in substance, drums and containers.
He, therefore, held that the appellant was entitled to demand from the respondent the deposit of the contributions as prescribed by the Act.
He, however, took the view that the demand for damages made by the appellant was not justified.
On these findings the writ petition was partly allowed in that a writ was issued against the appellant restraining him from making a demand for the payment of damages.
In regard to the claim made by the respondent that it was not liable to deposit the contributions under the Act, the learned Judge held that the said claim was not justified.
The respondent then preferred an appeal under the Letters Patent before a Division Bench of the Punjab High Court.
The Letters Patent Bench has upheld the respondent 's contention that the manufacture of brass utensils does not fell within the entry "Electrical, Mechanical or general engineering products" enumerated in Sch. 1 to the Act.
In the result, the respondents appeal was allowed and a writ was issued against the appellant in terms of the prayer made by the respondent in its writ petition.
The appellant then moved the said High Court for a certificate and with the certificate granted to him, he has come to this Court in appeal.
That is how the only question which arises for our decision is : what is the true content of the entry "Electrical, Mechanical or general engineering products" included in Sch. 1 ,of the Act? 75 Before dealing with this point, it would be relevant to refer briefly to the broad features of the scheme prescribed by the Act, and its purpose.
This Act was passed in order to provide for the institution of provident funds for employees in factories and other establishments.
Section 1, sub section (3), originally provided that subject to the provisions contained in section 16, the Act would apply (a) to every establishment which is a factory engaged in any industry specified in Sch. 1 and in which 50 or more persons are employed, and (b) to any other establishment employing 50 or more persons or class of such establishments which the Central Government may, by notification in the Official Gazette, specify in that behalf. 'Mere is a proviso to this subsection which it is unnecessary to set out.
Later, in 1960, the requirement that 50 workmen should be employed has been modified and now, the employment of 20 workmen is enough to attract the application of the Act.
Section 2(g) defines a "factory" a, , any premises, including the precincts thereof, in any part of which a manufacturing process is being carried on or is ordinarily so carried on, whether with the aid of power or without the aid of power.
This shows that if the test prescribed by section 1(3) is satisfied and the undertaking is shown to be engaged in a manufacturing process, the Act applies.
It makes no difference to the applicability of the Act that in a given factory, the manufacturing process is carried on without the aid of power.
It is the manufacturing process which is the decisive factor.
Section (1) defines "industry" as meaning any industry specified in Sch. 1, and includes any industry added to the Schedule by notification under section 4.
This definition shows how entries in Sch. 1 assume significance.
Whenever a question arises as to whether any industry is governed by the Act, the answer is to be found by looking at Sch.
It is also clear that additions can be made to Sch. 1 from time to time by notification by the Central Govern ment.
Section 4 specifically confers this power on the Central Government.
It provides that the Central Government may add any industry to Sch. 1 and it lays down that after the notification is issued by the Central Government in that behalf, the industry so added shall be deemed to be an industry specified in Sch. 1 for the purposes of the Act.
Section 4(2) provides a safeguard by requiring that notifications issued under sub section (1) shall be laid before Parliament, as soon as may be, after they are issued.
Section 5 is the key section of the Act and it provides for the institution of Employees ' Provident Fund Schemes.
It is not necessary for our purpose to refer to the details of these schemes.
It would thus be seen that the basic purpose of the Act is to 76 require that appropriate provision should be made by way of provident fund for the benefit of the employees engaged in establishments to which the Act applies.
Rules made for the institution of the funds provide for contribution both by the employees and the employers and there can be little doubt that the purpose intended to be achieved by the Act is a very beneficent purpose in that it assures to the employees concerned the payment of specified amounts of provident fund in due time.
Schedule 1 which plays a decisive role in the determination of the question as to whether an industry falls under the provisions of the Act, originally contained six entries.
It provided that any industry engaged in the manufacture or production of the six items mentioned therein shall be an industry for the purpose of the Act.
The words "or production" were deleted in 1953 and now, the entry refers to any industry engaged in the manufacture of the items mentioned in Sch. 1.
Amongst the items thus inserted was "Electrical, Mechanical or general engineering products.
" Just as the requirement as to the number of workmen whose employment would bring the establishment within the scope of the Act has been liberalised and 50 has been brought down to 20, so the items listed in Sch. 1 have also been expanded and several additions have been made in that behalf.
The object of the Act clearly was to proceed to make provision for the provident fund for the benefit of industrial employees in a cautious and pragmatic manner, and that explains how and why the Central Government has slowly and gradually but progressively, been expanding the scope of the applicability of the Act to different branches of industry.
The process of making additions to Sch. 1 has been proceeding apace and one has merely to look at the items which have been listed in Sch. 1 by several additions up to the 15th of May, 1964 to realise how the scope of Sch. 1 has been considerably expanded.
The question as to what exactly is the content of the entry with which we are concerned has been considered by different High Courts from time to time, and we would very briefly indicate what the effect of these decisions is in order to illustrate how the approach adopted by the Courts in interpreting this entry has not been uniform.
In Regional Provident Commissioner, U.P., Kanpur vs M/s. Great Eastern Electroplator Ltd.,(1) a Division Bench of the Allahabad High Court held that an electric torch case is receptacle in which the torch batteries are kept, and it is, therefore, a container within the meaning of item (24) of the (1) A.I.R. 1959 All 133. 77 Explanation to Sch. 1, and is or must be deemed to be an electrical, mechanical or general engineering product.
We ought to add that in 1953, an Explanation has been added to Sch. 1 for the purpose of indicating what items would fall under the entry "Electrical, mechanical or general engineering products".
Amongst the items listed under the Explanation, item (24) is 'drums and containers '.
The Division Bench of the Allahabad High Court reversed the view taken by the learned single Judge of the said High Court, and came to the conclusion that an electric torch case is a container within the meaning of item (24) in the Explanation to which we have just referred.
This decision of the Divi sion Bench was brought to this Court in appeal (No. 580 of 1960, decided on 18th December 1962), and this Court took the view that the conclusion reached by the Division Bench that an electric torch case is a container within the meaning of item (24) of the Explanation to Sch.
1 was right.
In the Nagpur Glass Works Ltd. vs Regional Provident Fund Commissioner, (1) the Bombay High Court has held that burners or metal lamps were products which fell within the Schedule under the entry 'Electrical, mechanical or general engineering products '.
In Haji Nadir Ali Khan and Others vs The Union of India and Others,(2) Falshaw J., as he then was, took the view that musical instruments, whether made of metal or otherwise, though not mentioned specifically in Sch. 1, fell within the scope of the expression "electrical, mechanical or general engineering products".
In Hindustan Electric Co., Ltd. vs Regional Provident Fund Commissioner, Punjab, & Anr.
,(3) Grover J. of the Punjab High Court similarly held that stoves would fall within the expression in question.
In Madras, in T. R. Raghava Iyengar and Co. vs The Regional Provident Fund Commissioner, Madras, (4) Jagadisan J. has taken the view that the conversion of metal sheets and circles into vessels results in products of metal rolling and re rolling within the meaning of the Schedule to the Act, and so, an industry for the purpose of manufacturing vessels and utensils out of brass and copper sheets and circles is covered by the Act.
In The Regional Provident Fund Commissioner, Bombay vs Shree Krishna Metal Manufacturing Co., Bhandara, and Oudh Sugar Mills Ltd.
,(1) one of the points which arose for the decision (1) I.L.R. (2) A.I.R. 1958 Pun.
(3) A.I.R. 1959 Pun.
(4) A.I.R. 1963 Mad. 238.
(5) [1962] Supp. 3 S.C.R. 815.
78 of this Court was whether the manufacture of metal circular sheets fell within Sch. 1, and it appears that it was conceded by both the parties that the said work would fall within Sch. 1 of the Act; and so, the Co., carrying on the said work was a factory engaged in the industry which attracted the provisions of the Act.
We have referred to these decisions only to illustrate how in dealing with different products, the Courts have tried to interpret the entry in question; it appears that in dealing with the products with which they were concerned in each case, they did not adopt a uniform approach, and the reasons given and the tests applied by them are not the same or similar.
It is hardly necessary to add that we propose to express no opinion on the merits of the decisions to which we have just referred.
Reverting then to the question of construing the relevant entry in Sch.
1, it is necessary to bear in mind that this entry occurs in the Act which is intended to serve a beneficent purpose.
The object which the Act purports to achieve is to require that appropriate provision should be made for the employees employed in the establishments to which the Act applies; and that means that in construing the material provisions of such an Act, if two views are reasonably possible, the courts should prefer the view which helps the achievement of the object.
If the words used in the entry are capable of a narrow or broad construction, each construction being reasonably possible, and it appears that the broad construction would help the furtherance of the object, then it would be necessary to prefer the said construction.
This rule postulates that there is a competition between the two constructions, each one of which is reasonably possible.
This rule does not justify the straining of the words or putting an unnatural or unreasonable meaning on them just for the purpose of introducing a broader construction.
The other circumstance which has to be borne in mind in interpreting the entry is that the interpretation should not concentrate on the word "products" used in it.
If this word had been used, say for instance in the material provisions of the Sales tax Act, the decision as to whether a particular product is liable to pay the tax, would depend upon the consideration whether the pro duct in question falls within the scope of the said Act or not, and in that context, interpretation would naturally concentrate on the character and nature of the product in question.
In the present case, the entry takes us back to the first clause of Sch. 1 which refers to any industry engaged in the manufacture of any of the products enumerated by the different entries in Sch.
T. So, in 79 construing the relevant entry, what we have to ask ourselves is : is the industry of the respondent engaged in the manufacture of any of the products mentioned in the entry ? It is the character of the industrial activity carried on by the respondent 's undertaking that falls to be determined, and the question is not so much as to what is the product produced as what is the nature of the activity of the respondent 's undertaking; is the respondent 's undertaking engaged in the manufacture of the products in question ? This consideration is relevant for the purpose of determining the content of the entry.
There is no doubt that the establishment of the respondent is a factory within the meaning of section 2 (g), and it would be an industry within the meaning of Sch. 1 if its manufacturing activity is found to be an activity connected with the products enumerated in the entry.
The entry refers to engineering products.
It is, therefore, necessary to clear the ground by referring to the word "engineering" which qualifies the word "products".
To engineer, according to the dictionary meaning, is to act as an engineer, or to employ the art of the engineer upon; to construct or manage as an engineer.
"Engineering", according to the Encyclopedia Britannica, Vol. 8, in its early uses referred specially to the operations of those who constructed engines of war and executed works intended to serve military purposes.
Such military engineer, , were long the only ones to whom the title was applied.
But about the middle of 18th century a new class of engineers arose who concerned themselves with works which, though they might be in some cases of the same character as those undertaken by military engineers, as in the making of roads, were neither exclu sively military in purpose nor executed by soldiers, and those men by way of distinction came to be known as civil engineers.
Thus, civil engineering came to be known as the "art of directing the great sources of power in nature for the use and convenience of man, as the means of production and of traffic in states, both for external and internal trade, as applied in the construction of roads, bridges, aqueducts, canals, river navigation and docks for internal intercourse and exchange, and in the construction of ports, harbours, moles, breakwaters and lighthouses, and in the art of navigation by artificial power for the purposes of commerce, and in the construction and adaptation of machinery, and in the drainage of cities and towns".
(p. 444).
Gradually, however, Specialisation set in.
The first branch of engineering which received recognition as a separate branch, was mechanical engineering.
This branch is concerned with 80 steam engines, machine tools, millwork and moving machinery in general, and it was soon followed by mining engineering, which deals with the location and working of coal, ore and other minerals.
Subsequently, numerous other more or less strictly defined groups and sub divisions came into existence; they are : civil, mining and metallurgical, mechanical, electrical, chemical aeronautical and industrial.
There are other less clearly defined branches of engineering, such as sanitary, structural, drainage, hydraulic, highway, railway, electric power, electrical communications, steam power, internal combustion, marine, welding, production, petroleum production, fire protection, safety, architectural, nuclear, and management or administrative engineering (p. 448).
It would thus appear that the area covered by engineering which was originally occupied only by military engineering, is now split up into several sub areas which are covered by special branches of engineering known by special names.
The entry in question refers to electrical and mechanical engineering, and it is easy enough to determine what the denotation of these two expressions is.
In the context, 'general engineering ' which is also mentioned in the entry must not be construed in a general comprehensive sense which the words may, prima facie, suggest, because if that was the scope of the said words, there was hardly any point in referring to electrical and mechanical engineering separately.
Therefore, we are inclined to hold that the expression "general engineering" does not include electrical or mechanical engineering which are specifically mentioned in the entry, and it also does not include other branches of engineering which are known by specific or special titles.
These specific branches of engineering have already been indicated by us by reference to the Encyclopaedia Britannica.
After the first six entries had been included in Sch. 1 in 1952, an Explanation was added to it in 1953 which purports to indicate what items are intended to be included in the entry "Electrical, mechanical or general engineering products".
This Explanation consists of four clauses; cl.
(a) enumerates the items falling under the entry with which we are concerned in the present appeal, whereas clauses (b), (c) and (d) afford similar explanation in regard to entries relating to "Iron and Steel", "Paper", and "Textiles" respectively.
A glance at the items included in cl.
(a) of the Explanation, as well as the items included in clauses (b), (c) & (d) clearly shows that the object of the legislature in enacting the Explanation was to clarify the content of the respective entries 81 in Sch. 1, to illustrate them by adding specific items, and to enlarge their scope in some material particulars.
The fact that an Explanation has been added with this purpose in 1953, must also be taken into account in construing the entry in question.
Mr. Agarwala for the respondent has contended that the learned single Judge was in error in holding that the respondent 's industry was engaged in the manufacture of drums and containers specified as item (24) introduced in cl.
(a) of the Explanation.
He argues that the core of the entry is engineering products, and while construing the entry, the significance of this core should not be overlooked.
According to him, the entry really takes in engineering products like machinery and equipment for generation of electrical energy.
He suggests that in determining the content of this entry, we should ask ourselves what would this entry mean to an ordinary citizen in a commercial sense ? It would mean that the products to which the entry refers are products which are useful in, or meant for, electrical engineering, mechanical engineering or general engineering.
This entry may also take in machines or their parts which are similarly useful in or meant for electrical, mechanical, or general engineering.
If this narrow construction is accepted, then, of course, production of brass utensils would be plainly outside the entry.
There are, however, several considerations which suggest that this narrow construction cannot be accepted.
As we have already indicated, a glance at the items mentioned in cl.
(a) of the Explanation and the extended meaning attributed to the respective entries covered by clauses (b), (c) and (d) of the Explanation, clearly indicates that none of the said entries can be reasonably mad in that restricted manner.
If this restricted interpretation is accepted, then several items included in cl.
(a) of the Explanation would be so completely foreign to the original content of the entry that their inclusion would appear to be unjustified.
Take for instance, item (15) in cl.
(a) of the Explanation which is bicycles; item (17) which is sewing and knitting machines; item (22) which is safes, vaults and furniture made of iron or steel or steel alloys; or item (23) which is cutlery and surgical instruments.
Clause (a) of the Explanation provides that these items should be included in the entry in question, "without prejudice to the ordinary meaning of the expressions used therein".
If the narrow construction for which Mr. Agarwala contends is accepted, it would look unreasonable that the Legislature should have introduced these items under cl.
(a) of the Explanation.
Besides, 82 this construction lays undue emphasis on the concept of products and erroneously treats engineering products as the core of the expression.
What the entry really means is electrical engineering products, mechanical engineering products or general engineering products and in determining the content of the entry, we have to hark back to the relevant consideration that this entry is intended to describe an industry as falling within the scope of the Act if the said industry is engaged in the manufacture of the products in question.
Now, if we take the other entries which were initially included in Sch. 1, the construction for which Mr. Agarwala contends cannot obviously be applied in respect of them; and so, we think it would not be possible to adopt the narrow construction which Mr. Agarwala has suggested for our acceptance.
On the other hand, Mr. Sen for the appellant suggested that the proper way to construe this entry would be to hold that this entry would take in every industry which is engaged in the manufacture of products which are manufactured by electrical, mechanical or general engineering process.
This construction treats the process of production as the crux of the entry; and if this construction were accepted, the scope of the content of the entry would be very wide indeed.
If every product whose production can be referred to one or the other of the processes mentioned in the entry is construed to fall within its content, then several other entries in the Schedule would, prima facie, appear to be redundant, because this entry itself would be comprehensive enough to take them in.
In that case, Explanation (a) which has been added in 1953 would itself appear to be without any purpose, because most, if not all, of the items introduced by the said clause would be included within the original entry itself.
In our opinion, such a wide construction would not be justified, because we are inclined to hold that it is not the process which is important in construing the entry as the character of the activity with which the industry is concerned.
That is why we are not prepared to accent the very broad construction of the entry suggested by Mr. Sen.
The proper way to determine the content of this entry appears to us to be to hold that all products which are generally known as electrical engineering products, or mechanical engineering products, or general engineering products, are intended to be covered by the entry, and the object of Sch.
1 is to include within the scope of the Act every industry which is engaged in the manufacture of electrical engineering products, mechanical engineering 83 products, or general engineering products.
It is the character of the products that helps to determine the content of the entry; can.
the product in question be reasonably described as an electrical engineering product, or a mechanical engineering product, or a general engineering product ? That is the question to ask in every case, and as we have already indicated, in considering the question as to whether the product falls under the category of general engineering product, general engineering should be construed in the limited sense which we have already shown.
It may be that in a large majority of cases, the products included within the entry may be produced by electrical or mechanical or general engineering process; but that is not the essence of the matter.
The industrial activity which manufactures the three categories of products already enumerated by us, brings the industry within the scope of Sch. 1, and therefore, attracts the application of the Act.
If we bear in mind the three broad categories of products, the manufacture of which brings the industry within the scope of Sch. 1, it would be easy to appreciate the items enumerated in cl.
(a) of the Explanation.
Broadly stated, items 1 to 6 can be, said to be electrical engineering products; 7 to 10 may be said to be mechanical engineering products and the rest general engineering products.
We are free to confess that the inclusion of each one of these items in cl.
(a) of the Explanation cannot be easily explained; but, on the whole, it appears to us that the object of the Explanation was to clarify, illustrate and expand the content of the entry in question in order that there should be no doubt as to the classes and categories of industry which were intended to be brought within the purview of the Act.
Thus considered, we think that the manufacture of brass utensils can easily be regarded as an activity the object of which is the manufacture of general engineering products.
This interpretation is not as narrow as that suggested by Mr. Agarwala, nor as broad as that suggested to Mr. Sen, and, on the whole, it seems to fit in with the scheme of Sch.
1 considered in the light of the object intended to be achieved by the insertion of the Explanation in 1953 and the subsequent additions made to Sch. 1 itself.
We are, therefore, satisfied that the Letters Patent Bench of the Punjab High Court was in error in holding that the respondent 's factory did not fall within the scope of the material provisions of the Act.
Incidentally, we may add that before the present controversy arose between the respondent and the appellant, it appears that the respondent had 84 been making deposits towards the Provident Fund as required by the Act.
The result is, the appeal is allowed, the order passed by the :,Letters Patent Bench is set aside and that of the learned single Judge restored with costs throughout.
Appeal allowed.

summary/full:
The respondent firm, which ran a factory manufacturing brass utensils, filed a Writ Petition for the issue of a mandamus, restraining the appellant from recovering contributions alleged to be due under section 1(3), read with Schedule 1, of the Employees Provident Fund Act, 1952, contending, inter alia, that the manufacture of brass utensils did not fall within the relevant entry in Schedule 1, i.e. it was not an industry engaged in the manufacture of 'electrical, mechanical or general engineering products '.
The learned Single Judge, who heard the petition, rejected the respondent 's contention, holding that brass utensils were, in substance, 'drums and containers ' i.e. they fell within item (24) and cl.
(a) of the Explanation to Schedule 1, and that therefore their manufacture was covered by Schedule 1.
On appeal, however, the Division Bench reversed this finding and issued a writ as prayed for.
it was contended on behalf of the respondent that the products to which the entry referred were products which were useful in, or meant for, electrical engineering, mechanical engineering, or general engineering.
On the other hand, it was the appellant 's contention, that the entry would take in every industry which was engaged in the manufacture of products that were manufactured by an electrical, mechanical or general engineering process.
HELD : In construing the relevant entry in Schedule 1, it was necessary to bear in mind that this entry occurred in an Act which was intended to serve a beneficent purpose.
If the words used in the entry were capable of a narrow or broad construction, each construction being reasonably possible, and if it appeared that the broad construction would help the furtherance of the object, then it would be necessary to prefer that construction.
[78 C F] The nature of the items included in the Explanation to Schedule 1 clearly showed that some of the items could not reasonably be included within the restricted interpretation canvassed by the respondent; on the other hand, the mention of several of items would be redundant if the wide interpretation advocated by the appellant was to be accepted.
[81 B H; 82 A F] The content of the entry 'electrical, mechanical and general engineering products ' was that all products which were generally known as electrical engineering products or mechanical engineering products or general engineering products were intended to be covered by the entry, and the object of Schedule 1 was to include within the scope of the Act every industry which was engaged in the manufacture of electrical engineering products mechanical engineering products or general engineering products.
It was the character of the products that helped to determine the content of the entry.
[82 G H; 83A] 73 Thus considered the manufacture of brass utensils must be regarded as an activity the object of which was the manufacture of general engineering products.
[83 F] Case law reviewed.


judgement:
Appeal No. 538 of 1964.
Appeal from the judgment and order, dated September 25, 1963 of the Patna High Court in Misc.
Judicial Case No. 1381 of 1962.
K. Rajendra Chaudhuri and K. R. Chaudhuri, for the appel lant.
M. C. Setalvad, D. P. Singh, section C. Agarwal and M. K. Rama murthy, for the respondent No. 1.
The Judgment of the Court was delivered by Raghubar Dayal, J.
This appeal, on certificate granted by the High Court of Patna, raises the question whether section 64A of the Motor Vehicles Act as introduced by the Motor Vehicles (Bihar Amendment) Act, 1949 (Bihar Act XXVII of 1950), hereinafter referred to as Bihar section 64A, was not applicable to proceedings for grant of permit for inter State routes.
This question, however, was decided by this Court in section K. Pasari vs Abdul Ghafoor(1).
It was held that it was applicable to cases of stage carriage permits for inter State routes.
The respondent prayed, in view of the observations in Abdul Mateen vs Ram Kailash Pandey (2) for permission to challenge the validity of the aforesaid section on the ground that Parliament, by the Motor Vehicles (Amendment) Act, 1956 (Act No. 100 of 1956), has introduced another section 64A in the (Act TV of 1939), hereinafter referred to as Central section 64A and that thereby Bihar section 64A must be taken to have been repealed by necessary implication.
(1) Civil Appeal No. 306 of 1964, decided on 4 5 64.
(2) ; 8 The question arises in this way.
The appellant Tansukh Rai Jain, was one of the applicants for the stage carriage permit for an inter State route between Bihar and Orissa.
The State Transport Authority, Bihar, granted the permit to the United Motor Works & Co. Ltd. The appellant and respondent No. 1, Nilratan Prasad Shaw, appealed to the appellate authority, the Deputy Minister of Transport, Bihar, against the order of the State Transport authority.
The appellate authority reversed the order and granted the permit to Shaw, respondent No. 1.
Thereafter, the appellant went in revision to the Bihar Government, in view of Bihar section 64A.
The Transport Minister set aside the order of the appellate authority and granted the permit to Jain, the appellant.
Shaw, respondent No. 1, then filed a writ petition in the High Court and prayed for the quashing of the order of the Transport Minister and for the restoration of the order of the appellate authority granting the permit to him.
The High Court allowed the writ petition holding that Bihar section 64A did not apply to stage carriage permits for interState routes and that therefore the Bihar Government was incompetent to revise the order of the appellate authority.
It is urged for the respondent that the provisions of Bihar section 64A are repugnant to those of Central section 64A and are therefore void in view of cl.
(1) of article 254.
It is also urged that the Central Act has repealed Bihar section 64A by enacting Central section 64A in the exercise of the power it had under the proviso to article 254(2).
If the provisions of Bihar section 64A are repugnant to any extent with those of Central section 64A, Bihar section 64A will be void to the extent of the repugnancy in view of cl.
(1) of article 254 of the Constitution.
As the Central Act was enacted by Parliament subsequent to the enactment of Bihar section 64A, the provisions of the main part of cl.
(2) of article 254 will not apply to make Bihar section 64A good within the State of Bihar, even though it had received the assent of the President, as those provisions applied when the Central Act is enacted earlier than the State law.
We have therefore to see whether the provisions of Bihar section 64A are repugnant to those of Central section 64A.
The tests for determining whether a certain provision of a State law is repugnant to the provisions of a law made by Parliament are stated thus, in Deep Chand vs The State of Uttar Pradesh(1) : "Repugnancy between two statutes may thus be ascertained on the basis of the following three principles (1) [1959] Supp. 2 S.C.R. 8, 43. 9 (1) Whether there is direct conflict between the two provisions; (2) Whether Parliament intended to lay down an exhaustive code in respect of the subject matter replacing the Act of the State Legislature; and (3) Whether the law made by Parliament and the law made by the State Legislature occupy the same field.
" We may now refer to the two sections, Central section 64A and Bihar section 64A : "Central section 64A : The State Transport Authority may, either on its motion or on an application made to it, call for the record of any case in which an order has been made by a Regional Transport Authority and in which no appeal lies, and if it appears to the State Transport Authority that the order made by the Regional Transport Authority is improper or illegal, the State Transport Authority may pass such order in relation to the case as it deems fit : Provided that the State Transport Authority shall not entertain any application from a person aggrieved by an order of a Regional Transport Authority, unless the application is made within thirty days from the date of the order: Provided further that the State Transport Authority shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard." "Bihar section 64A : The State Government may, on application made to it in this behalf, within thirty days of the passing of the order in the course of any proceedings taken under this Chapter by any authority or officer subordinate to it, call for the records of such proceedings, and after examining such records pass such order as it thinks fit.
" The words 'subordinate to it ' in Bihar section 64A, were omitted by the Motor Vehicles (Bihar Amendment) Act, 1953 (Bihar Act 1 of 1954).
This was however not noticed when Bihar section 64A was quoted in Pasari 's case(2).
First we have to see whether there is any direct conflict between Central section 64A and Bihar section 64A.
Such a conflict, to a (1) Civil Appeal No. 306 of 1964, decided on 4 5 64.
Sup.165 2 10 certain extent, can arise if Bihar section 64A be construed literally.
The language of Bihar section 64A is very general and empowers the State Government to revise any order made in the course of any proceedings taken under Chapter IV and pass such orders as it thinks fit.
It must, however, be so construed, if possible, as not to come in conflict with the provisions of the Central Act.
The power of revision vested in the State Government under its provisions are to come into play only when the Central Act does not provide any remedy against the orders proposed to be revised.
Certain orders have been made appealable under section 64 of the Act.
The power of revision therefore will arise and will be exercised after the appellate power is exhausted and not when the aggrieved person has not appealed against the order.
Similarly, it will be available only against non appealable orders after the aggrieved person has taken action under Central section 64A.
The aggrieved person cannot have recourse to action under Bihar section 64A without first taking action under Central section 64A.
To the extent that the language of Bihar section 64A can cover the cases open to appeal and to revision under section 64 and Central section 64A respectively, it will be in direct conflict with the provisions of the Central Act and Bihar section 64A will be void to that extent.
Bihar section 64A, it is argued for the respondent, is wholly void as by Central section 64A Parliament intended to lay down an exhaustive code in respect of the said subject matter of revisions.
It is also urged that Bihar section 64A is wholly void as both that section and Central section 64A cover the same field.
On these very grounds, it is urged that by enacting Central section 64A Parliament has revealed by implication Bihar section 64A as it was competent to do in view of the proviso to cl.
(2) of article 254.
Repeal, by implication, is not to be easily inferred.
It is to be expected that when Parliament was aware of the provisions of Bihar section 64A and of article 254 of the Constitution and it intended to repeal Bihar section 64A, it would have expressly stated so.
There is nothing in Central section 64A or in any other provision of the Act which expressly states that Bihar section 64A is repealed.
We are of opinion that the mere fact that Central section 64A deals with revisions against non appealable orders of the Regional Transport Authority is not sufficient to conclude that Parliament intended to repeal Bihar section 64A. The language of Bihar section 64A is very wide and covers all orders made by any authority or officer in the course of any proceedings taken under Chapter TV of the Act.
The only limitation on the exercise of the revisional power conferred on the State 11 by Bihar section 64A is that the State cannot suo motu exercise that power.
It can exercise it when moved on application by some person aggrieved with the order he seeks to be revised.
Such orders can be orders of the State Transport Authority, the Regional Transport Authority or any other authority or officer.
Central section 46A provides for revisions against the orders of the Regional Transport Authority and does not provide for revisions against the orders of the prescribed authority to whom appeals could be preferred under section 64.
Central section 64A can therefore preclude the State Government from entertaining revisions against non appealable orders of the Regional Transport Authority, but cannot preclude the operation of Bihar section 64A in regard to other orders.
It is not provided in the Act that the order passed by the State Transport Authority in the exercise of its revisional jurisdiction under Central section 64A would be final.
If such a provision had been made it might have been possible to urge.
that Parliament intended that the order of the State Transport Authority in revision was not to be interfered with by any authority.
The absence of such an expression therefore leads to the inference that Parliament did not intend that there be no interference with such orders of revision.
Further, it may be noticed that section 64 does not exhaust the list of all appealable orders.
Its cl.(1) provides for an appeal by a person aggrieved by any other order which may be prescribed. 'Prescribed ' means 'prescribed by rules made under the Act '.
Subsection (1) of section 68 empowers the State Government to make rules for the purpose of carrying into effect the provisions of Chapter IV which consists of sections 42 to 68.
Sub section (2) specifies certain matters with respect to which rules be made.
Its clause (za) mentions 'any other matter which is to be or may be prescribed '.
It follows that the State Government can make rules providing for certain orders to be appealable under section 64 and thus reduce the orders which otherwise would come within the ambit of Central section 64A.
The orders made appealable under the rules framed by a State would not be open to revision under section 64A as it provides for revisions against non appealable orders only.
It is clear therefore that Parliament cannot be imputed the intention to make the provisions of section 64A to be so exhaustive and complete as to lead to the necessary conclusion that thereby it intended to repeal the provisions of Bihar section 64A which gave power to the State of Bihar to revise orders made by authorities or officers in proceedings under Chapter IV.
The provisions of Bihar section 64A and Central section 64A are not such that they cannot be complied with simultaneously, except for the contingency already mentioned, i.e., when an application is 12 made to the State Government by a person aggrieved by such an order of the Regional Transport Authority which be not appeal,able under section 64.
In such a case, the State Government cannot exercise its power under Bihar section 64A against the orders of the Regional Transport Authority, though it would be free to exercise that power at a later stage after the State Transport Authority had disposed of the revision, if any, made to it.
Revision, in the first instance, against non appealable orders passed under Chapter IV must go to the State Transport Authority as in respect of such orders Parliament must be taken to have varied the provisions of Bihar section 64A.
We therefore hold that Bihar section 64A is neither void nor has been repealed by Central section 64A and that its scope has been limited only to this extent that revisions against such orders of the Regional Transport Authority which are not appealable have to be preferred to the State Transport Authority.
In the present case the State Government of Bihar revised the order made by the appellate authority.
It was competent to do so.
The High Court was in error in holding otherwise.
We therefore allow the appeal with costs, set aside the order of the High Court and restore that of the State of Bihar granting permit to the appellant Jain.
Appeal allowed.

dataset_name: IN-Abs

summary/full:
The Bihar State Legislature by Act 27 of 1950 introduced section 64A into the Motor Vehicles Act (Central Act IV of 1939).
By that section power was given to the State Government to revise orders of authorities and officers in proceedings under Chapter IV of the Motor Vehicles Act.
Subsequent to this by Act 100 of 1956 Parliament introduced another section 64A into the Act providing that revision would lie to the State Transport Authority from the non appealable orders of Regional Transport Authority.
Respondent No. 1 filed a writ petition before the High Court challenging an order of the State Government under section 64A of Bihar Act 27 of 1950.
By the said order the State Government had granted a stage carriage permit to the appellant setting aside an order of the Appellate Authority in favour of Respondent No. 1.
The High Court held that Bihar section 64A did not apply to stage carriage permits for inter State routes and therefore the order of the State Government made under that section was bad.
The appellant thereupon filed an appeal before the Supreme Court with certificate.
Before the appeal was heard, the Supreme Court had already decided in another case that there was nothing in Bihar section 64A to render it inapplicable to stage carriage permits for inter State routes, thus reversing the High Court 's decision on that point.
Respondent No. 1therefore sought, and was given permission to challenge the order of the State Government on another ground, namely, that Central section 64A had by vitrue of the provisions of cls.
(1) and (2) of article 254 of the Constitution rendered void or impliedly repealed Bihar section 64A. It was urged that Central section 64A was exhaustive, that it covered the same field as Bihar section 64A, and that the two sections were directly repugnant.
HELD : (i) Central section 64A could not said to be exhaustive.
While it provided for revision to the State Transport Authority against the non appealable orders of the Regional Transport Authority, it did not confer, any finality on the orders passed by the former and it was open to the Bihar Legislature to provide further remedies.
Moreover the scope of Central section 64A could be enlarged or reduced by the State Government which had power under section 68 to determine which orders of the Regional Transport Authority would be appealable.
[11 B C, F H] (ii) Nor could it be said that Central section 64A and Bihar section 64A covered the same field.
Central section 64A only dealt with revisions against the orders of the Regional Transport Authority, while Bihar section 64A bad a much wider operation giving to the State Government power to revise orders of any authority or officer in proceedings under Ch.
IV of the Act.
Such orders could be those of the State Transport Authority, and the Appellate Authority besides other authorities and officers, [11 C D, G H] 7 (iii) The language of Bihar section 64A is very general, Literally construed it can be said to be in conflict with both section 64 and Central section 64A, inasmuch as it can cover cases open to appeal under the former section, and to revision under the latter section.
To the extent of this repugnance Bihar section 64A is void.
But the section as a whole is not void nor has it been repealed by Central section 64A; its scope has been limited only to this extent that revisions against such orders of the Regional Transport Authority which are not appealable, have to be preferred to the State Transport Authority.
[110, D, H; 12C] Deep Chand vs State of Uttar Pradesh, [1959] Supp. 2 S.C.R. 8, applied.
section K. Pasari vs Abdul Ghafoor, C.A. No. 306 of 1964 decided on 4 5 64 and Abdul Mateen vs Ram Kailash Pandey, ; , referred to.
In the present case the State Government of Bihar revised the order made by the Appellate Authority.
It was competent to do so.
The High Court was in error in holding otherwise.


judgement:
Appeal No. 856 of 1964.
Appeal by special leave from the judgment and order dated May 21/22, 1964 of the Calcutta High Court in Matter No. II of 1962.
Me appellant appeared in person.
55 C.K. Daphtary, Attorney General, Ranadeb Choudhury, P. K. Chatterjee, Somendra Chandra Bose and P. K. Bose, for respondent No. 1.
C. K. Daphtary, Attorney General, N. C. Chatterjee and R. H. Dhebar, for respondent No. 2.
The Judgment of the Court was delivered by Gajendragadkar, C.J.
The short question which arises in this appeal by special leave is whether the order passed by the President of India on May 15, 1961, approving the action which was proposed to be taken against the appellant, Jyoti Prokash Mitter, amounts to a decision on the question about the appellant 's age as a Judge of the Calcutta High Court under article 217(3) of the Constitution.
In the note placed before the President along with its accompaniments it was proposed that the appellant should be informed that his correct date of birth had been determined to be December 27, 1901, and so, he should demit his office of puisne Judge of the Calcutta High Court on December 26, 1961 on which date he would attain the age of 60.
The draft of the letter which was intended to be sent to the appellant in that behalf was also placed before the President.
On the file, the President made an order, "approved"; and the question is whether this is an order which can be related to article 217 (3).
It is true that this order was passed on May 15, 1961, whereas clause (3) of article 217 which was added in the Constitution by the Constitution (Fifteenth Amendment) Act, 1963, came into force on October 5, 1963.
Section 4(b) of the Amendment Act, however, provides that the said clause shall be inserted and shall be deemed always to have been inserted in the Constitution.
In other words, in terms, the insertion of the relevant clause is made retrospective in operation.
That is how it has become necessary to enquire whether the order passed by the President on May 15, 1961 can be said to amount to a decision within the meaning of the said clause.
Writ Petition No. 13 of 1962 from which this appeal arises was filed by the appellant in the Calcutta High Court on January 2, 1962.
By his petition, the appellant claimed a writ in the nature of mandamus and/or appropriate directions, order or writs under article 226(1) against respondent No. 1, the Chief Justice of the Calcutta High Court, requiring him to recall the order passed by him by which he had decided that the appellant had retired from his post as a Judge with effect from December 27, 1961.
This writ petition has had a checkered career.
Banerjee, J. 56 before whom it came for the issue of a Rule Nisi, was not satisfied that it was necessary to issue Rule Nisi on it, and so, he dismissed the appellant 's writ petition in limine on January 3, 1962.
The appellant challenged the correctness of this decision by preferring an appeal under Letters Patent before a Division Bench of the said High Court.
Mitter and Laik JJ.
who constituted this Bench, however, differed, and so, the learned Chief Justice bad to constitute a Special Bench of three learned Judges to deal with the appeal.
P. N. Mookerjee, Sankar Prasad Mitra and R. N. Dutt, JJ.
who constituted this Special Bench, heard the matter and delivered three concurring judgments.
They were, however, unanimous in holding that Banerjee J. was in error in refusing to issue a Rule Nisi, and so, they allowed the appeal preferred by the appellant and directed that a Rule Nisi in terms of prayer (1) of the petition should be issued.
Against this order, respondent No. 1 came in appeal to this Court by special leave.
By its judgment pronounced on the 14th October, 1963, this Court held that the Special Bench was right in directing a Rule Nisi to be issued on the writ petition filed by the appellant, and so, the appeal preferred by respondent No. 1 was dismissed.
The writ proceedings thus went back to the Calcutta High Court for disposal on the merits in accordance with it.
At this stage, a Special Bench consisting of five learned Judges of the High Court heard the matter.
The area covered by the controversy between the parties was very wide and several constitutional questions of law were exhaustively argued before this Special Bench.
All the learned Judges constituting the Bench have delivered separate judgments each one elaborately dealing with the points urged before the Court.
P. N. Mookerjee J. in substance, accepted the main pleas raised by the appellant and directed that an appropriate writ or an appropriate order or direction in the nature of a Writ do issue against respondent No. 1 calling upon him to forbear from giving effect to the impugned order until a proper determination by the President that the appellant has attained the age of superannuation.
He, however, added that the operation of the order which he proposed to issue should remain stayed for three months to enable respondent No. 1, if he was so advised, to obtain the President 's determination in the matter of the appellant 's age and act upon the same in accordance with law.
57 The four other learned Judges, Mallick, Banerjee, Das Gupta and Chatterjee J., however, took a different view.
They held that the appellant was not entitled to any writ or order against respondent No. 1 as claimed by him.
The approach adopted by these learned Judges is not uniform, but.
on the whole, their final conclusion was against the appellant.
In the result, in accordance with the majority decision, the writ petition filed by the appellant has been dismissed.
It is against this decision that the appellant has come to this Court by special leave which was granted to him on August 24, 1964.
On September 21, 1964, upon an oral prayer made by the Attorney General for India, the Court allowed the Attorney General to intervene in this matter, and by consent of parties, the Court directed that the appeal should be set down for hearing on the 26th October, 1964, subject to any part heard matter.
On the 26th October, 1964, when the appeal was called out for hearing, the Court allowed the appellant 's prayer for adding the Union of India to the appeal as respondent No. 2.
The Attorney General of India who had already been allowed to intervene in the proceedings, accepted notice of the motion made by the appellant for joining the Union of India and agreed to appear for the Union of India.
At his request, the appeal was adjourned to the 29th October, 1964 in order to enable him to file an affidavit on behalf of respondent No. 2.
That is how this appeal came on for final hearing on the 29th October, 1964.
At the hearing, both parties conceded that the only question which called for our decision is whether the order of the President passed on May 15, 1961, could be said to be a decision on the point about the age of the appellant within the meaning of article 217 (3).
In view of the fact that the Amendment Act, 1963 inserted clause (3) in article 217 retrospectively during the pendency of the present writ proceedings, all other questions which had been argued between the parties before the said Amendment, have now become immaterial and that has naturally narrowed down the scope of the present controversy.
Though the controversy between the parties thus lies within narrow limits, it is necessary to set out the material facts in some detail in order to appreciate the background of the present dispute, because it is only in the light of the said background that the problem posed for our decision can be seen in its proper perspective.
The appellant who was enrolled as a Barrister of ' the Calcutta High Court on May 5, 1931, was appointed an Additional Judge of the said High Court on February 11, 1949.
In January, 1950, he became a permanent Judge of the said High Court.
At the time of his appointment, the appellant had given Sup./65 5 58 the date of his birth as December 27, 1904.
It appears that some time in 1959, the attention of the Home Minister of the Government of India was drawn to an extract from the Bihar and Orissa Gazette of June 26, 1918 containing the results of the Matriculation Examination held by the Patna University in April, 1918.
The relevant information contained in the said extract showed the age of the appellant at the date of the examination as 16 years and 3 months.
This would indicate that the appellant was born on December 27, 1901.
It also appears that later, the Home Minister came to know that when the appellant appeared at the open competitive examination for the I.C.S. in July/August, 1923, the date of his birth was given and shown as December 27, 1901.
That is why the Home Minister raised the question about the correctness of the date of birth given by the appellant at the time of his appointment.
As a result of the correspondence carried on between the Union Home Minister, the Chief Minister of West Bengal, the Chief Justice of the Calcutta High Court, and the appellant, the Government of India ultimately decided that the appellant 's date of birth was December 27, 1901; and so, the file containing the said correspondence and other relevant material was placed before the President on May 15, 1961.
Noting made on this file indicated that the Government of India intended to ask the appellant to demit his office on December 26, 1961, after court hours.
After this proposal was approved by the President, the Government of India asked the Chief Minister of West Bengal to communicate this decision to the appellant through the Chief Justice of the Calcutta High Court.
At that stage, the appellant moved the Punjab High Court under article 226 of the Constitution by a writ petition filed on November 15, 1961, against the Union of India, praying that an appropriate writ or order should be issued against the Union of India restraining it from giving effect to its impugned order.
The said High Court, however, dismissed the appellant 's writ petition on December 4, 1961.
The appellant then moved this Court for special leave to appeal against the decision of the Punjab High Court, but his petition was rejected in limine.
In due course, when occasion arose to give effect to the decision of the Government of India, respondent No. 1 passed an order directing that the appellant will demit his office of a puisne Judge of the Calcutta High Court on December 26, 1961 after Court hours.
It is the validity of this order which has been impeached by the appellant in the present writ proceedings.
The 59 appellant contended that respondent No. 1 was patently in error in seeking to enforce an order passed by the Government of India as an executive order by which they purported to determine his age.
On this basis, he claimed an appropriate writ or order against respondent.
No. 1; and that raised several constitutional questions.
But, as we have already indicated, the introduction of cl.
(3) in article 217 has completely changed the complexion of the controversy and all that we are now required to consider is whether the approval given by the President can fall within the purview of article 217(3).
Let us now examine the correspondence that took place bet ween the parties in order to ascertain the procedure adopted by the Government of India in obtaining the approval of the President, and the pleas taken by the appellant during the course of these proceedings.
On April 9, 1959, G. B. Pant, the Home minister, wrote to the Chief Minister, West Bengal, informing him that his attention had been drawn to the fact that the relevant extract from the Bihar and Orissa Gazette indicated that the date of birth given by the appellant at the time of his appointment as an Additional Judge of the Calcutta High Court, was not accurate.
In this letter.
the Home Minister suggested to the Chief minister that he should arrange to have necessary enquiries made in that regard and let him know the result of the said enquiry.
The Chief Minister got in touch with Chief Justice K. C. Das Gupta on the is point, and the Chief Justice wrote to the appellant on April 17, 1959, sending him a copy of the letter which he had received from the Chief Minister.
In this letter, the Chief Justice requested the appellant to furnish him with a full statement on all the points involved and inform him at the same time of any other material which may be relevant on the correct ascertainment of the date of his birth, and the consequential ascertainment of the date of his retirement.
On the same day, the Chief Justice wrote another note to the appellant inviting him to meet him in order that be should be able to talk to him about a matter which vitally concerned the appellant.
The appellant was asked to meet the Chief Justice at 4 P.m. that day.
On May 27, 1959, the appellant wrote to Chief Justice Das Gpta suggesting that the date of his birth shown in the relevant extract from the Gazette was obviously incorrect.
He expressed his satisfaction that the question of his age had not been raised directly by either the State Government or the Government of India, but had been raised at the instance of some mischievous person.
He emphasised that there was hardly any reason for him 60 to give an inaccurate date of his birth when he accepted appointment.
Chief Justice Das Gupta again wrote to the appellant on July 6, 1959 informing him about the report from the Civil Service Commission, London, regarding the date of birth given by the appellant to the Commission when he appeared for the I.C.S. Competitive Examination.
A copy of the said report was forwarded to the appellant.
The Chief Justice asked the appellant to send Ms comments on the said report.
On August 12, 1959 the appellant sent a reply to this letter, and he pleaded that he did not recollect at that distance of time whether he had himself given to the Civil Service Commission the date of his birth.
He was, however, certain that being then an undergraduate at Oxford, he did not obtain any certificate of age in terms of clause 4 of the Regulations concerning Examinations for the Indian Civil Service.
In this letter, the appellant protested that he saw no valid reason for any further enquiry as to his identity with the examine and he urged that the question sought to be raised was one of principle.
According to him, the date of birth given by him at the time of his appointment could not be questioned.
After these letters of the appellant were forwarded by the Chief Justice of the Calcutta High Court to the Government of India, the matter was sent to section R. Das, the Chief Justice of India for his opinion.
Chief Justice Das considered the material forwarded to him and expressed his definite view that the date of birth of the appellant should be taken to be December 27, 1901.
In this connection, Chief Justice Das observed that in such matters they had always been insisting that the date of birth given in the birth register or school register or Matriculation Certificate should be conclusive.
This opinion was expressed by Chief Justice Das on September 9, 1959.
Thereupon, Chief Justice Lahiri of the Calcutta High Court intimated to the appellant on September 21, 1959, that he has been asked by the Chief Minister, West Bengal, to inform him that the Home Minister, Government of India, had considered the explanation given by him about his age and had decided, with the concurrence of the Chief Justice of India, that the age stated in his Matriculation Certificate would be treated as final and the will have to retire on the basis of the age as recorded therein.
It appears that the Home Minister, Government of India, had written to the Chief Minister, West Bengal, on September 14, 1959, intimating to him that he had consulted the Chief Justice of India in 61 regard to the question of the appellant 's age and that he entirely agreed with the advice given by the Chief Justice of India; and he suggested that the appellant should be informed accordingly through the Chief Justice of the Calcutta High Court.
That is how the appellant came to know about this decision through his chief Justice.
After the appellant received intimation about the decision of the Government of India, he wrote to Chief Justice Lahiri expressing his emphatic disapproval of the said decision, and he made litter comments against the views expressed by Chief Justice Das in the note made by him while giving his advice to the Government of India in this matter, vide his letter of September 30, 1959.
in his letter of April II, 1960, the appellant wrote to Chief Justice lahiri that he had repeatedly pointed out to Government that the controversy as to his superannuation involved a principle affecting the judiciary as a whole, and so, there could be no question of submitting to arbitration.
He had already made it clear in his letter of September 30, 1959, that the procedure adopted by the Government of India from beginning to end was unwarranted and that he was not bound by the decision communicated to him by the Chief Justice of the Calcutta High Court on September 21, 1959.
further correspondence went on between the parties, but it is not necessary to refer to it, because it does not give any further material which is relevant for our decision.
That takes us to May 12, 1961, on which date the Ministry of Home Affairs prepared a note setting forth the history of the dispute as to the correct date of the appellant 's birth.
This note shows that the Government of India had consulted Chief Justice Sinha who succeeded Chief Justice section R. Das; Chief Justice Sinha had so taken the same view as had been taken earlier by Chief justice Das.
The note also points out that when an offer was made to the appellant to have the issue tried by arbitration, he had rejected the offer, and so, after considering all relevant facts, it was proposed to send a formal communication to him asking him to demit his office on December 26, 1961.
This note has been signed by the Secretary to the Ministry of Home Affairs.
In this note, the Secretary had stated that both the Law Minister and the Home Minister had approved of the note.
This note was submitted to the Prime Minister who, on the same day, agreed with the course of conduct proposed to be adopted, and then it went to the President who expressed his approval on May 15, 1961.
That the genesis of the impugned order.
62 It appears that in the morning of July 30, 1961, the appellant saw Prime Minister Nehru and complained against the order which had been passed in respect of his age.
The Prime Minister wrote to the appellant the same day that he had told the appellant that he proposed to consult the Chief Justice of India and the appellant had agreed to that course.
The appellant appeal to have requested the Prime Minister that he should be Given chance to place his viewpoint before the Chief Justice of India and the Prime Minister had assured him that he could meet the Chief Justice and place his case before him.
In this letter, the Prime Minister has also stated that he had spoken to the Chief Justice of India that evening and that he was told that some time back a rule had been framed to determine the age of sitting Judge of High Courts and that rule had been followed in his case.
The letter also added that the Chief Justice of India had mentioned the Prime Minister that there had been some serious complain about the manner in which judicial work had been transacted the appellant.
In the end, the Prime Minister advised the appellant to get in touch with the Chief Justice of India.
It is true that in dealing with the question about the appellant 's age, refer ence to the quality of his judicial work was irrelevant; but the general tone and content of the Prime Minister 's letter clear indicate that the Prime Minister had adopted a flexible, inform fair and sympathetic approach to the appellant 's grievance and he was willing to re examine the matter if it was found necessary to do so.
Accordingly, the appellant met the Chief Justice of India on July 31, 1961.
It appears that when the appellant met Chief Justice Sinha, the latter advised him to retire on December 2, 1961 on the basis of the date of birth disclosed by his Matriculation Certificate.
The appellant was told that was in consonance with the policy adopted by the Government of India recent cases.
The Chief Justice assured the appellant that was not the intention of the Government of India to do anything to cast aspersions on the veracity of a Judge of a High Court, and he indicated that without going into the correctness of the a given by the appellant, it was desirable that he should retire the basis that the Matriculation Certificate correctly represent, his age.
"I am glad", said Chief Justice Sinha, "that you have taken my assurance in the spirit in which it was given, namely to save you and to save the Government from any embarrassment in connection with such a controversy.
This is the substance the letter which Chief Justice Sinha wrote to the appellant 63 August 22, 1961.
This letter also indicates that Chief Justice Sinha assured the appellant that no aspersion was intended to be cast on the veracity of his statement as to his age presumably because the appellant had indicated to him that he would be willing to retire in case it was made clear that no aspersion was cast on his veracity.
As Chief Justice Sinha explained in a note made by him on a later occasion, the background of his letter clearly suggests that the conversation between the Chief Justice and the appellant was of an informal character and the Chief Justice was naturally willing to assure the appellant that if he quits office on the 26th December, 1961, it would save embarrassment both to the appellant and the Government.
This approach again was flexible, fair and sympathetic to the appellant.
As we have already seen, in due course before the 26th December, 1961 arrived respondent No. 1 passed an order directing the office to treat the appellant as having retired on December 26, 1961; and that has given rise to the present controversy.
Let us now revert to article 217(3) and ascertain its true scope and effect.
article 217(3) provides that if any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final.
We have already noticed that this provision has been expressly made retrospective in operation, so that whenever a question arises as to the age of a sitting Judge of a High Court, that question has to be decided by the President in the manner prescribed by article 217(3).
The retrospective operation of this provision postulates that this provision must be read in the Constitution as from January 26, 1950; and so, it will apply even in regard to the determination of the ages of Judges of High Courts who had been appointed to their office before the actual provision was inserted in the Constitution by the Amendment Act of 1963.
This provision vests the jurisdiction to determine the question about the Judge 's age exclusively in the President, and so, it follows that in the presence of this provision, no court can claim jurisdiction to deal with the said question.
It is true that before this provision was inserted in the Constitution, the question about the age of a sitting Judge of a High Court could have been theoretically brought before the High Court in a proceeding by way of a writ for Quo Warranto under article 226.
But now there can be no doubt that the question about the age of a Judge of a High Court has to be determined only in one way, and that is the way prescribed by 64 article 217(3).
This position is not disputed by the appellant before us.
It is also clear that the decision of the President under article 217 (3) is final, and its propriety, correctness, or validity is beyond the reach of the jurisdiction of courts.
What procedure should be followed in deciding the age, what opportunity should be given to the Judge whose age is being decided, and other allied questions pertaining to the decision, are entirely within the discretion of the President.
The provision requires that before the President reaches his decision, he has to consult the Chief Justice of India; consultation with the Chief Justice of India is clearly a mandatory requirement of clause (3).
It is thus clear that while leaving the decision of the relevant question to the President, the Parliament thought it necessary to provide that having regard to the gravity of the problem covered by the said provision, it is essential that the President should have the assistance of the advice given by the Chief Justice of India.
It is also implicit in this provision that before the President reaches his decision on the question, he ought to give the Judge concerned a reasonable opportunity to give his version in support of the age stated by him at the time of his appointment and produce his evidence in that behalf.
How this should be done, is, of course, for the President to decide; but the requirement of natural justice that the Judge must have a reasonable opportunity to put before the President his contention, his version and his evidence, is obviously implicit in the provision itself.
These aspects of the matter are not disputed by the teamed Attorney General before us.
It is in the light of this position that we must now proceed to consider the question as to whether the decision of the President on which the Union of India relies can be said to be a decision under article 217 (3).
The first point which arises in this connection is whether an earlier decision reached by the President when the provision in question was not factually included in the Constitution, can be treated as a decision under the said provision as a matter of law.
It is well known that where legislation makes retrospective provisions, it sometimes expressly provides that orders passed earlier under some other provisions should be deemed to have been passed under the subsequent provision retrospectively introduced.
Such a provision has not been made by the Amendment Act, 1963 which inserted clause (3) in article 217.
But in dealing with the present appeal, we are proceeding on the basis that an order passed by the President on May 15, 1961, can be treated as a decision 65 under article 217(3) if, on the merits, such a conclusion is justified, because, in terms, the said provision is made retrospective.
Before dealing with this question, there are some incidental matters which must be considered.
The appellant has urged before us that article 217(3) can come into play only if and when a genuine or serious question about the age of a Judge arises.
He contends that if any person frivolously or maliciously and without any justification whatever raises a dispute about the correctness of the age given by a Judge at the time of his appointment, article 217 (3) should not be allowed to be invoked.
It is true that it is only where a genuine dispute arises as to the age of a Judge that article 217(3) would be allowed to be invoked; but that is a matter for the President to consider.
Under article 217(3) the President should, and we have no doubt that he will, in every case, consult the Chief Justice of India as to whether a complaint received in respect of the age of a sitting Judge of any High Court should be investigated, and it is with such consultation that he should decide whether the complaint should be further investigated and a decision reached on the point.
We think it is clear that if a dispute is raised about the age of a sitting Judge and in support of it, evidence is adduced which prima facie throws doubt on the correctness of the date of birth given by a Judge at the time of his appointment, it is desirable that the said dispute should be dealt with by the President, because it is of utmost importance that in matters of this kind, the confidence of the public in the veracity of a statement made by a Judge in respect of his age must be scrupulously maintained, and where a challenge is made to such a statement, it is in the interests of the dignity and status of the Judge himself as much as in the interests of the purity and reputation of the administration of justice that the dispute should be resolved and the matter cleared up by the decision of the President.
The appellant, however, contends that pending the decision of the dispute, the Judge concerned continues to be a Judge and should not be required to step down from his office.
As a matter of law, the appellant is right when he contends that a Judge cannot cease to be a Judge merely because a dispute has been raised about his age and the same is being considered by the President; but in dealing with this legal position, considerations of prudence and expediency cannot be ignored.
If a dispute arises about the age of a Judge, any prudent and wise Chief Justice would naturally think of avoiding unnecessary complications by refusing to assign 66 any work to the sitting Judge if at the time when the dispute had been raised, it appears that the allegation is that at the relevant time the Judge in question has reached the age of superannuation.
In such a case, if the decision of the President goes against the date of birth given by the appellant, a serious situation may arise, because the cases which the said Judge might have determined in the meanwhile would have to be rehealed, for the disability imposed by the Constitution when it provides that a Judge cannot act as a Judge after he attains the age of superannuation, will inevitably introduce a constitutional invalidity in the decisions of the said Judge, and it is plain that it would be the duty of the Chief Justice to avoid such a complication.
Therefore, we do not think the appellant is entitled or justified in making a grievance of the fact that respondent No. 1 refused to assign any work to him after the 26th December 1961.
That takes us to question as to whether the impugned order can be said to fall under article 217(3).
The Attorney General has contended that the approval expressed by the President on May 15, 1961, in law amounts to a decision under article 217(3), because it satisfies all the requirements of the said provision.
The Government of India had consulted Chief Justice section R. Das as well as his successor, Chief Justice Sinha, the Government had asked the appellant to make his comments on the material which showed that the appellant was born on the 27th December 1901; a large volume of correspondence proceeded between the parties and it is only after the appellant had set out his contentions and his points that the Government ultimately came to a conclusion against the appellant and placed before the President the whole file containing all the material including the advice received from Chief Justice section R. Das and Chief Justice Sinha.
The Attorney General has urged that it is not necessary that the President should himself write an elaborate order incorporating his decision on the question referred to him; the word "approved" used by him while signing the file amounts to his decision.
In support of this argument, he has referred us to two decisions : Srinivas Mall Bairoliva vs King Emperor(1), and Alexander Brogden and Others vs The Directors, & c., of the Metropolitan Railway Company (2) .
He has also urged that the procedure followed by the Ministry of Home Affairs in placing the file before the President is in accordance with the rules of business prescribed in that behalf, and so, the decision of the President should be held to be a decision under article 217(3).
(1) Pat.
(2) 67 Prima facie, there appears to be substance in this argument; but on a closer examination of the material produced before us, we find that there are several difficulties in upholding it.
Let us first enquire as to when this decision was reached and by whom ? We have already seen that in his letter of September 14, 1959 G.B. Pant, the then Home Minister, wrote to the Chief Minister, West Bengal, that he had consulted the Chief Justice of India and he agreed with the advice given to him by the Chief Justice, and so, he had decided that the date of birth of the appellant was December 27, 1901.
It is this decision which was, in due course, communicated to the appellant.
Now, if this be held to be the decision of the Government of India, then, of course, article 217(3) is inapplicable.
The decision was reached by the Home Minister, no doubt after consulting the Chief Justice of India; but that plainly is not the decision of the President.
What happened subsequent to this decision also doe , not assist the Attorney General 's contention.
It is true that the attitude adopted by the Government of India was, on the whole, very fair.
They were anxious to consider what the appellant had to say in respect of this dispute.
They were also anxious to take into account whatever pleas the appellant might have to raise in favour of the date of birth given by him.
They consulted Chief Justice section R. Das as well as Chief Justice Sinha who followed him.
They offered to take the question to an 'arbitrator of the choice of the parties, and when they found that the appellant was not agreeable to adopt any such course, they considered the matter and placed the file before the President.
There is little doubt that this flexible and informal approach adopted by the Government in dealing with this question was inspired by a desire to be fair to the appellant; but the flexibility and the informality of the approach thus adopted by the Government out of a sense of fairness themselves tend to introduce an infirmity in the procedure when it is sought to be co related.
With the requirements of article 217(3).
It is difficult to imagine that if the President were to act under article 217(3) he could or would ask the Judge concerned to go to arbitration.
It is because of this flexible and sympathetic approach adopted by the Government that even after the Home Minister had come to a definite decision against the appellant, the matter was allowed to he reopened and the whole question was considered afresh.
That, again, would not be quite consistent with the requirements of article 217(3).
In this connection, it is hardly necessary to emphasise that when at the relevant time the Government were considering this matter and they consulted the Chief Justice of India, the 68 informality of the said consultation does not squarely fit in with the formal consultation which is now made mandatory by article 217(3).
Therefore, having regard to the procedure followed by the Government in dealing with this question, we feel some hesitation in accepting the Attorney General 's argument that what has been done prior to the decision of May 15, 1961, can be easily assimilated to the requirements of article 217(3).
There is one more objection which is fatal to the Attorney General 's contention.
and that must now be considered.
It is true that at all material stages, the appellant had taken an alternative stand in support of his case that the date of birth given by him was correct and could not be challenged.
His first contention was that where a lawyer gives the date of his birth on the occasion of his appointment as a Judge of the High Court and the said date is accepted by the Government and entered in official records, its correctness cannot be impeached at any time.
This contention is clearly not well founded.
Whether or not the Government of India accept the date of birth given by a lawyer before he is appointed, it is difficult to hold that a litigant would be precluded from putting that question in issue in a proceeding taken by him under article 226 for the issue of a writ of Quo Warranto.
It is true that no such applications are known to have been made; and that naturally speaks for the respect in which Judges of High Courts are held by the litigants and the public in this country.
But speaking constitutionally prior to the insertion of cl.
(3) in article 217, it would have been open to a litigant, if he has material in his possession in that behalf, to apply to a High Court and urge that a particular Judge is not competent to act as a Judge, because, according to him, he has already reached the age of superannuation.
Therefore.
we are satisfied that the stand taken by the appellant that the statement made by him as to the date of his birth before he took office can never be questioned, is not well founded.
The alternative stand which the appellant took was that the Executive was not entitled to determine his age; and it must be remembered that this stand was taken before article 217 (3) was inserted in the Constitution, the appellant was undoubtedly justified in contending that the Executive was not competent to determine the question about his age, because that is a matter which would have to be tried normally in judicial proceedings instituted before High Courts of competent jurisdiction.
There is considerable force in the plea which the appellant took at the initial stages of this controversy that if the Executive is allowed to determine the 69 age of a sitting Judge of a High Court, that would seriously affect the independence of the Judiciary itself.
Basing himself on this ground, the appellant did not produce his evidence in the proceedings taken by the Government of India before the impugned order was passed.
The appellant stated before us and he apparently suggested this fact even to the Punjab High Court when he moved that Court under article 226 that he had in his possession evidence which supported the date of birth given by him before he was elevated to the Bench.
It is true that he did not produce this evidence, though Chief Justice Das Gupta had asked him to do so.
We are not impressed by the appellant 's plea that he had not received the letter of Chief Justice Das Gupta written on April 17, 1959, in which he had been asked to communicate to the Chief Justice what material he had in support of the date of birth given by him; and so, we proceed on the basis that the appellant did not produce his evidence, though he was called upon to do so.
He also refused to go to arbitration.
But the question which arises for our decision is : can the appellant 's failure or refusal to produce evidence be fairly pressed into service against him when basically he was right in contending that the Executive cannot decide the issue of his age by itself ? If the appellant was right in this contention, then no adverse inference can be drawn against him because he failed or refused to adduce evidence before the Executive.
We are satisfied that having regard to the circumstances in which the enquiry was made, and bearing in mind the fact that the appellant was justified in contending that his age could not be determined by the Executive in proceedings initiated by it, the impugned order passed by the President must be held to suffer from the serious infirmity that the evidence of the appellant was not available to the President when he reached his decision.
The question concerning the age of the appellant on which a decision was reached by the President on May 15.
1961, affects the appellant in a very serious manner; and so, we think considerations of natural justice and fair play require that before this question is determined by the President, the appellant should be given a chance to adduce his evidence.
That is why we think that, on the whole, it would not be possible to accept the Attorney General 's contention that the order passed by the President on May 15, 1961, can be treated as a decision within the meaning of Art, 217 (3).
We ought to make it clear that in dealing with the grievance of the appellant that his evidence was not before the President at the relevant time, we are not prepared to hold that his failure or refusal to produce evidence at that stage should be judged in the 70 light of the retrospective operation of article 217(3); such a consideration would be totally inconsistent with the concept of fair play and natural justice which ought to govern the enquiry contemplated by article 217(3).
In dealing with this aspect of the matter, it would be unreasonable, unjust and unfair to refuse to recognise the position of law as it actually and in fact existed at the relevant time merely because by the fiction introduced by the retrospective operation of the constitutional amendment, the said position cannot now be deemed.
to have then existed in the eyes of law.
The Attorney General faintly attempted to argue that the decision of the Punjab High Court in the writ petition filed by the appellant in that Court in 1961 (Civil Writ No. 479 D/ 1961) amounts to res judicata on the question about the appellant 's age.
In his judgment, Chief Justice Khosla has no doubt observed that he was convinced upon all the material which had been produced before the Court including the horoscope and the entry in the almanac that the Home Ministry was not wrong in accepting the correct age of the appellant as that given in the Bihar & Orissa Gazette and in the certificate which the appellant had filed with, his application when he sat for the I.C.S. Examination.
This argument is obviously misconceived.
First and foremost, if article 217 (3) is retrospective in operation, any decision of the Court on this question must be deemed to be without jurisdiction, because from January 26, 1950 itself this question must be deemed to have fallen within the exclusive Jurisdiction of the President.
Since the plea of res judicata on which the Attorney General relies is a plea of law, the appellant is entitled to repel the said plea on the legal ground that the constitutional amendment in question is retrospective, and at the relevant time the High Court had no jurisdiction to decide this point.
But quite apart from this technical constitutional position, it is impossible to hold that the observation on which the Attorney General relies can be said to be 'a decision which can operate as res judicata in law.
Chief Justice Khosla, in substance, dismissed the writ petition of the appellant on the around that it was premature, and so, he expressly observed that the question about the age of the appellant was of an academic nature.
He also seemed to rely on the doctrine of approbate and reprobate.
Besides, it does not appear that the documents to which he refers were formally proved before the Court in those proceedings and had been the subject matter of any argument before it.
Under these circumstances, the plea that 71 this judgment creates a bar of res judicata must be rejected without any hesitation.
We ought to add that if this Court had felt inclined to treat this decision as a decision on the merits of the appellant 's age, it would certainly not have dismissed in limine the appellant 's application for special leave to appeal to this Court against that judgment.
That raises the question as to the proper order which should be passed in the present proceedings.
The appellant has contended before us that if we hold that the impugned decision of the President does not amount to a decision under, article 17(3), he is entitled to have a formal decision of the President in terms of the said provision.
The Attorney General has conceded that this contention of the appellant is well founded.
He, therefore, stated to us on behalf of the Union of India that in case our decision on the main point is rendered against the Union of India, the Union of India will place the matter before the President within a fortnight after the pronouncement of our judgment inviting him to decide the question about the appellant 's age under article 217(3).
Both parties have agreed before us that in case the decision of the President is in favour of the appellant, the appellant will be entitled to claim that he has continued to be a Judge notwithstanding the order passed by the Chief Justice of the Calcutta High Court and will continue to be a Judge until he attains the acre of superannuation.
On the other hand, if the decision of the President goes against the appellant, the said order of the Chief Justice of the Calcutta High Court would be held to be valid and proper.
Having regard to the circumstances of this case, we think that the present appeal should be disposed of in terms of this order.
There would be no order as to costs.
Ordered accordingly.

summary/full:
There was divergence between the appellant 's date of birth as given at the time of his appointment as Judge of the Calcutta High Court and as found in the records of the public examinations at which he had appeared.
The Union Home Minister after correspondence with the parties concerned including the Chief Justice of India and the appellant determined the appellants date of birth to be December 27, 1901 as found in the records of the appellant 's Matriculation Examination.
The President, by order passed on May 15, 1961, approved the decision and the consequent order that the appellant be asked to emit his office on December 26, 1961 when be would reach the age of superannuation.
The Punjab High Court dismissed the appellant 's writ petition challenging the order and the Supreme Court dismissed in limine the petition for special leave to appeal.
Pursuant to the orders of the Union Government the Chief Justiceof the Calcutta High Court asked the appellant to demit his office on December 26, 1961, and after that date did not allot him any work.
The appellant thereupon filed a writ petition before the Calcutta High Court under article 226 of the Constitution which was dismissed.
The Supreme Court granted him special leave to appeal.
The appellant in his appeal contended that the age of a Judge given by him at the time of appointment once accepted by Government, could not again be called in question and in any case could not be determined again by the Government by Executive order.
The complexion of the controversy the passing of the Constitution by adding cl.
(3) to article 217 provided that any dispute as to the ago of a Judge of a High Court would be decided exclusively and finally by the president of India in consultation with the chief justice of India.
The Amendment Act also provided that the provision shall be deemed always to have been in the Constitution.
The parties agreed that after the retrospective amendment the main question for consideration was whether the order of the Union Government determining the appellant 's age and date of superannuation was an order which could be deemed to have been passed under article 217(3).
HELD : (i) If a dispute is raised about the age of a sitting Judge then it is desirable that the matter should be decided by the President.
Whether the dispute is genuine or not is to be considered by the President in consultation with the Chief Justice of India.
But it is certainly in the interests of the Judge himself, as much as in the interests of the purity and 54 reputation of the administration of justice that the dispute should be settled.
it could not be held that the age of a Judge given by him at the time of ,,appointment could never again be called in question.
(65 E F] (ii)The Chief Justice of the Calcutta High Court was justified in not allotting any work to the appellant after December 26, 1961, as any judgments delivered by him after the date would have been open to question as to their validity.
[66 B C] (iii)The judgment of the Punjab High Court dismissing appellant 's ,writ petition did not operate as res judicata as it was not on merits.
[71 A] (iv)Article 217(3) gave to the President exclusive power to determine ,the age of a sitting Judge and divested the courts of jurisdiction in this regard.
The procedure to be adopted was in the discretion of the President ,but the provision to formally consult the Chief Justice of India was man Also implicit in the Article, was the requirement that the Judge concerned should have a reasonable opportunity to give his version and 'Produce his evidence.
[64 B D] (v)The provision having been expressly made retrospective the appeal had to be decided on the basis that the order passed by the President in the appellant 's case could be treated as a decision under article 217(3), if, on merits, such a conclusion was justified.
[65 A] (vi)The order of the Union Government passed on May 15, 1961 did not satisfy the requirements of article 217 (3) and could not be held to be ,an order passed under the provisions of that Article.
The decision had been taken by the Home Minister and that plainly was not a decision of the President.
The offer to allow the matter to be decided by arbitration, and reopening of the matter after the decision had been taken, cannot be ,easily assimilated to the requirements of the Article.
The informality of the consultation with the Chief Justice of India also did not squarely fit, in ,with the formal consultation which is mandatory.
[67 B C, G H; 68 A] Srinivas Mail Bairoltva vs King Emperor, I.L.R. 26 Pat. 460 and Alexander Brogden and others vs The Directors of the Metropolitan Rail.way Company , referred to.
(vii)The order was also not a proper order under article 217(3) because the requirements of natural justice had not been satisfied inasmuch as the President did not have before him when he made the decision the evidence of the appellant.
It is true that the appellant had refused to produce the evidence on the ground that the Executive had no jurisdiction to call into question and determine his age.
This contention of the appellant when raised was fully justified as such a dispute in the legal situation which them existed had normally to be determined by judicial proceeding before the High Courts of competent jurisdiction, and therefore his failure or refusal to produce his evidence could not be fairly pressed into.
service against 'him.
[69 D F; 70 B] The Court held that the appellant was entitled to a decision by the President of India as to his age under article 217(3) and passed orders in terms agreed to by both parties.
[71 B F]