judgement:
Appeal No. 2580 of 1969.
Appeal from the judgment and order dated August 6, 1969 of the Andhra Pradesh High Court in Writ Petition No. 3124 of 1967.
A.Subba Rao, for the appellants.
S.P. Nayar, for respondent No. 1.
P.Ram Reddy and A. V. V. Nair, for respondents Nos. 2 and 3.
P. P. Rao and T. V. section Narasimhachari, for respondent No. 4.
The Judgment of the Court was delivered by Beg, J.
This appeal, from a Judgment and order of the Andhra Pradesh High Court dismissing the appeallant 's Writ Petition, comes up before us by Certificate under Article 133(1)(a) of the Constitution, in the following circumstances One Buchivenkata Rao had filed application on 1 9 1959 and 1 8 1960 under Mineral Concession Rules, There in after referred to as 'the Rules ' before the Collector of Nellore, for the grant of a mining lease to him of an area mentioned in his applications.
He alleged that his applications complied with the rules framed under the Mines and Minerals (Regulation and Development Act of 1957.
The State Government rejected the application of 11 8 1960 on 7 12 1960, but granted the application made on 4th October, 1950, by the Respondent Kumara Rajah of Venkatagiri (hereinafter referred to as Venkatagiri).
The ground on which the application of the appellant Rao, was rejected was that Venkatagin ' had a prior claim.
The appellant Rao had then preferred a Revision application to the Central Government under the Mineral Concession Rules which came into force on 11th November, 1960,.
667 The Central Government had rejected the revision application on the ground that it was not filed within the prescribed time.
Upon a Writ Petition filed in the High Court of Andhra Pradesh, the order of rejection of the revision application by the Central Government was quashed.
The Central Government was directed to consider Rao 's application on merits.
The Central Government had, after giving due opportunity to be heard to the appellant Rao, dismissed his application on 18th October, 1967, holding that Venkatagiri had priority over his claim.
Rao then filed a second Writ Petition which was dismissed on 26th September, 1969.
The judgment and order of dismissal are now under appeal before us.
The judgment of the High Court shows that the appellant Rao had relied on the following three grounds only at the time of agruments on his Writ Petition : firstly, that the application of Venkatagiri was not made in accordance with Rule 27 and 32 of the said Rules of 1949; secondly, that the application of Venkatagiri was not for a fresh lease but for the continuation of a previous lease so that it did not fall within the purview of the rules; and, thirdly, that the Central Government had, not considered in detail the various comments offered by the State Govt.
with regard to each ground of revision.
A contention noticed by the High Court, as a separate ground of attack, was that the Central Govt.
had relied upon a ruling of a Single Judge of the Punjab High Court in J. A. Trivadi Brothers vs Union of India(1), holding that Rules 27 to 29 did not make defective applications void, but this view had been reversed by a Division Bench of that Court.
This was no really a separate ground but a contention relating to the effect of failure to comply strictly with Rules 27 to 29 of the Rules of 1949.
The main contention of Rao was that the application of Venkatagiri had to be disregarded as it failed to comply with the rules, and, therefore, was not an application in the eye of law, so that, out of several competing applications, Rao 's application.
ought to have been granted.
The High Court, made it clear that other grounds were taken in Rao* petition, but were not argued there.
In this Court, a fresh ground, neither taken nor argued before the High Court, is sought to be urged in addition to the other grounds before the High Court which were repeated before us.
We will take up the grounds advanced in the High Court and again in this Court before considering the entertain ability of the fresh ground.
At this stage, before dealing with the first ground, we may set out the relevant rules 27 and 32 of 1949 which run as follows "27.
Application for mining, lease An application for a mining lease shall, in case of land in which the mine (1) A.I.R. 1959 Punjab 589.
668 rals belong to Government, be made to the State Government concerned through such officer or authority as it may appoint in this behalf and shall contain the following particulars : (a)(i) If the applicant is an individual, his name, nationality, profession, and residence, and (ii) if the applicant is a partnership firm, a company or an association or body of individuals, whether in corporated or not, its name, nature and place of business, place of registration of incorporation and except in the case of a company which is not a private company as defined in the Indian Companies Act, 1913 (VII )of 1913) the names and addresses of the individuals constituting such partnership firm, company, association or body.
(b) The number and date of the notification of the grant or renewal of certificate: of approval of the applicant; (c) A description, illustrated by a map or plan, showing as accurately as possible the situation, boundaries and area of the land in respect of which the lease is required; (d) The mineral or minerals which the applicant intends to mine; (e) The areas and minerals within the jurisdiction of the State Government for which the applicant or any person joint in interest with him already holds a mining lease; (f) If the applicant holds a prospecting license for the area applied for, the number and date of such license; (g) The period for which the lease.
is required; and (h) The industry, if any, which the applicant proposes to develop and the location of such industry.
Explanation : The map or plan referred to in item (c) should give sufficient information to enable identification of the area in respect of which the lease is required".
Priority (1) If more than one application regarding the same land is received, preference shall be given to the application received first.
unless, the State Govern 669 ment, for any special reason, and with the prior approval of the Central Government decides to the contrary.
Provided that where more than one application in respect of the same land is received on the same day, the State Government, after taking into consideration the matters specified in sub rule (2) and after obtaining the prior approval of the Central Government, may grant the mining lease to such one of the applicants whom it considers to be the most suitable.
Provided further that no application shall be deemed to be incomplete for the purposes of this rule on account of the omission or misdescription of the number and date of the prospecting licence and of the profession or residence or nationality in the case of an individual or of the place of business in the case of a partnership firm, a company or an association or body of individuals, whether incorporated or not, if such omission or misdescription, is corrected within a period specified by the State Government or an Officer appointed by that Government in this behalf.
(2) The matters referred to in the proviso to subrule (1) shall be the following namely: (i) experience of the applicants in mining; (ii) financial soundness and stability of the applicants; (iii) special knowledge of geology or mining and the technical staff already employed or to be employed for the work.
It is clear to us that the details mentioned in Rule 27 are intended for the correct identification of the individual to whom the lease is to be granted, the minerals which are to be mined, the area in respect of which the lease was to be granted, and the qualifications of the applicant.
Considerable emphasis was placed on the word 'shall ' in Rule 32 with regard to the priority to be given between different applicants.
This rule does not directly affect the question whether an application for a lease could be considered a proper application or not by the authorities concerned.
The second proviso to this rule, however, provides for the manner in which certain defects may be cured.
Rule 32, sub rule (2), introduced in 1955 before the grant of the application of Venkatagiri, shows that the individual qualifications of the applicants including their special knowledge, their capacity to engage technically efficient staff, their financial soundness and stability, had to be taken into account in determining the question of priority.
Again Rule 670 26, imposing certain restrictions, prohibits the grant of the lease to any person who does not hold a certificate of approval from the State Government or who has not produced an Income tax clearance certificate.
It does not prohibit any grant on the ground that the application for it is defective or not accompanied by a map.
The form of the application seems to be subordinate to the essential facts, to be taken into account before granting a lease.
There is no provision in the Act showing that the defects in an application which is accompanied by the fee prescribed in Rule 28 cannot be subsequently removed.
The information given in the application is intended for the satisfaction of the authorities granting the lease so that, after considering inherits and making a grant, proper details are embodied in the lease actually granted.
It was not urged anywhere that, as a result of any defects in the applica tion, of Venkatagiri, the lease.
itself could not be executed.
This indicates that the omission to file a proper map initially was cured.
The High Court had relied on a decision of this Court in Banarsi Das vs Cane Commissioner, U.P.(1) where conditions similar to those laid down by Rule 27 were held to be directory.
It had also held that, even assuming that some of the requirements in the rules may be mandatory, it could not be held that the mere want of a map or of details, describing the area for which the lease was applied for, would make the application itself void or of no effect.
We are, therefore, unable to find any error in the view adopted by the High Court that the supply of necessary details was directory and not mandatory.
If it did not produce a defect which affected the validity of the lease, and the details supplied in the application corresponded with the contents of the lease after the alleged lacuna had been filed up, the grant of the lease to Venkatagiri was valid.
As regards the second ground that the application of Venkatagiri had to be interpreted as an application for the continuation of an already existing lease and not for the grant of 'a fresh lease, we find that the High Court had rejected this contention by pointing out that the application was on a form which complied, with Rule 27 so that it could be treated as a fresh application.
We find nothing wrong with the High Court 's interpretation of the application made by Venkatagiri.
The High Court had also found, as a fact, that the order of the Central Government disclosed that it was based on relevant considerations and could not be said to have omitted consideration of anything material simply because the details of matters considered were not fully set out.
We concur with this view and are (1) A.I.R. 1963 S.C. 1947.
unable to hold that the order of the Central Government was vitiated on the third ground urged on behalf of Rao.
We may now refer to the fresh question which was sought to be raised on behalf of the appellant by means of an application before us.
This was, that this Court had pointed out in Nookala Satharamaiah vs Kotaiah Naidu & Ors.(1), that, on 15th September, 1956, the Mineral Concession Rules were amended and.
a new sub rule 28(1 A) was introduced which provided that every application under Rule 27, shall be disposed of within nine months from the date of its receipt, and had, held that the effect of the amended Rule 57, which was further amended on 14 9 1956, was that an application remaining undisposed of within the period prescribed will be deemed to be rejected.
It was urged that we should allow this point to be argued for the first time in this Court although it was neither raised nor argued in the High Court.
it was submitted that this was a pure question of law on which no investigation of facts afresh was required.
On the other hand, it has been contended, on behalf of the contesting respondent, that a new _point should not be allowed to be urged at this stage for which reliance was placed on Bhagwati Saran & Anr.
vs State of Uttar Pradesh(2), section L. Aggarwal v ' General Manager, Hindustan Steel Ltd.(3), Chitra Ghosh & Anr.v.
Union of India & Ors.(4) Even if we had been disposed to consider this new ground on the plea that exceptional circumstances justified our going into it, we must here point out another fact which affects the very maintainability of the appeal before us now.
The appellant B. Rao died on 18 2 1970.
His sons filed an application in this Court on 20 7 1970 for impleading them as the heirs and legal representatives of the deceased.
This application was tentatively allowed, on 3 11 1970, under the orders of the Registrar of this Court, subject to such objections to the rights of the substituted appellants to be heard and to continue this appeal on behalf of the deceased ' as may be taken before us at the hearing of the appeal.
It has to be remembered that, in order to enable a legal re presentative to continue a legal proceeding, the right to sue or to pursue a remedy must survive the death of his predecessor.
In the instant case, we have set out provisions showing that the rights which an applicant may have had for the grant of a mining lease, on the strength of an alleged superior claim, cannot be separated from his personal qualifications.
No provision has been pointed out to us in the rules for impleading an heir who could continue.
the application for a mining lease.
The scheme under the rules (1) ; (3) ; at 365.
(2) ; at 568.
(4) ; at 420. 672 seems to be that, if an applicant dies, a fresh application has to be presented by his heirs or legal representatives if they themselves desire to apply for the grant of a lease.
It may be that the heir,, and legal representatives, if they are continuing the business or industry of the deceased and have, the required qualifications, obtain priority over an earlier applicant on account of special reasons for this preference.
But, in each case, they have to apply afresh and set out their own qualifications.
It has not been shown to us that any of the legal representatives have applied afresh.
The legal, representatives only claim to be entitled to succeed the deceased Buchivenkata Rao under a will.
The assumption underlying the application is that, whatever right the deceased may have had to .obtain a lease survived and vested in the heirs after his death.
We are unable to accept the correctness of this assumption.
In support of the contention on behalf of the heirs of Buchivenkata Rao, our attention was drawn to the case of Dhani Devi vs Sant Bihari & Ors.(1) which related to a right to obtain transfer of a permit for a Motor vehicle under Section 61, sub.
section 1(2) of the Motor Vehicle Act.
It was held there that, in the case of the death of an applicant for the grant of a permit in respect of his motor vehicle, the Regional Transport Authority had the power to substitute the person succeeding to the possession of the vehicle in place of the deceased applicant.
It was pointed out there that the right to the permit was related to the possession of the vehicle.
Moreover, there was a rule enabling the Transport Authorities to substitute the heir or legal representatives of the .deceased.
No such rule applicable to the case of the heirs of the deceased Buchivenkata Rao has been pointed out to us.
Therefore, we are unable to hold that the heirs, who have been heard, had any right to continue, the appeal before us.
This feature of the case is decisive not only on the right to be heard on the fresh ground but also on the right to advance any argument in support of the appeal of the deceased.
We may mention that it was also urged that the matter was so, old that any reversal of the grant of the mining lease to Venkatagiri, as long ago as 1960, would involve considerable dislocation and injury to respondent Venkatagiri without any fault on his part.
The respondent Venkatagiri must have invested considerable amount of money in mining operations.
The acceptance of the claim of Venkatagiri by the Government on the strength of which Venkatagiri made his investment clothes Venkatagiri 's claim with an equity which could not be defeated without clear proof of some legal right or interest of another claimant.
We are (1) ; 673 unable to see any such right in the heirs of the deceased Buchivenkata Rao.
Consequently this 'appeal is dismissed but we make no orders as to costs in this Court.
V.P.S. Appeal dismissed.

summary/full:
The application of one B for a mining lease was rejected on the ground that another applicant V had a prior claim.
B 's writ application was dismissed by the High Court and while his appeal in this Court was pending he died and his sons were allowed to be impleaded as legal representatives subject to any objection that may be taken to their right to continue the appeal.
it was not in accordance with r. 27 of the Mineral Concession Rules and because of want of a map and 'some details regarding area, and therefore, whether B 'section appli cation should have been granted, HELD : (1) The details mentioned in r. 27 are intended for the correct identification of the individual to whom the lease is to be granted, the minerals which are to be mined the area in respect of which the lease was to be granted and the qualifications of the applicant.
Rules 32(2), introduced in 1955, before the grant of V 's application, shows that individual qualifications of the applicants including their special knowledge, .their capacity to engage technically efficient staff, their financial soundness and stability, bad to be taken into account in determining the question of priority.
There is no prohibition against the grant of an application on the ground that the application is defective or not accompanied by a map.
There is also no provision in the Act showing that defects in an application could.
not be subsequently removed.
The form of the application is subordinate to the essential facts to be taken into account before granting a lease.
The information given in the application is intended for the satisfaction of the authorities granting the lease, so that, .after considering the merits and making a grant up Proper details are embodied in the lease actually granted.
ply of necessary details is directory and not mandatory.
It was not the cage here that as a result of the defects in V 's application the lease itself could not be executed.
Therefore, the mere want of a map or of details describing the area for which the lease was applied for, would not make the application itself void or of no effect.
If it did not produce a defect which affected the validity of the leak, and the details supplied in the application corresponded with the contents of the lease after the alleged lacuna had been removed the grant of the lease to V was valid.
[669 F H; 67OB F] (2) In order to enable a legal representative to continue a legal proceeding, the right to sue or pursue a remedy must survive the death of his predecessor.
Under the rules, the right of an applicant on the strength of a superior claim cannot be separated 'from his personal qualifications.
[671 G H] 666 Moreover, there is no provision in the Rules for imploding an heir to continue the application for a mining lease.
The scheme under the Rules is that if an applicant dies, a fresh application has to be presented by the heirs or legal representatives if they desire to apply far the grant of a lease.
It may be that they may obtain priority over an earlier applicant if they are continuing the business or industry of the decreased, but it would be on a fresh application setting out their qualifications.
Therefore, the heirs had no right to continue the appeal in this Court.
[672A C] Dhani Devi vs Sant Bihari & Ors.
, ; , distinguished.
(3) The acceptance of V 's claim by the Government on the strength of which he had made his investment, clothes his claim with an equity which could not be defeated without clear proof of some overriding legal right or terest of another claimant, and, there is no such right in the heirs of B [672G H]


judgement:
Appeal No. 2097 of 1968.
Appeal from the judgment and order dated August 11, 1965 of the Delhi High Court in C.W. No. 197 D of 1965.
Jagdiish Swarup, Solicitor General of India, section N. Prasad, B. D. Sharma and section P. Nayar, for the appellant.
S.C. Manchanda, section Balakrishnan and P. N. Lekhi, for the respondent.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by certificate from a judgement of the Punjab High Court by which the petition under article 226 of the Constitution filed by the respondent was allowed and the ban imposed on the sale of a news weekly called "The Indian Observer" by the licensees of the Railway Book Stalls throughout the country under directions issued by the appellant was set aside.
According to the writ petition, the petitioner was the owner and publisher of a weekly newspaper known as "The Indian Observer" which had a wide sale in India, its weekly circulation being approximately 1,35,000 copies.
Till March 1965 the .aforesaid news weekly was being sold at all the railway stations 867 which were managed and were under the administrative control of the Railway Board.
It was alleged that the policy of the news weekly was to publish a constructive criticism and fair comment in public interest on the working of different departments of the Government and to suggest remedial measures.
, In,some of the copies of the news Weekly, certain matters regarding the maladministration of the Railway had been published.
Reference was made in particular to the issue of 11th September, 1964 in which allegations were made about the black marketing in deluxe train tickets.
It was stated to have attained the magnitude of a big racket operating in the country resulting in lot of gain by corrupt means to the Railway staff.
It is unnecessary to give the details but according to the allegations made in the news weekly, the Railway staff was corrupt and the reasons for the corruption were also given.
Other comments were made which reflected adversely on the working of the Indian Railways.
According to the petitioner all these statements and resolutions annoyed the Railway Authorities and on 22nd September, 1964, the Circulation Manager of the Petitioner company received a letter from M/s Gulab Singh (P) Ltd., one of the licensees, of the Railway Board for sale of printed matters intimating that the Northern Railways administration had banned the sale, of "The Indian Observer" on the Railway Book Stalls.
Subsequently, when the petitioner took up the matter with the authorities concerned, the General Manager, Northern Railways, wrote to him informing him that temporary permission had been given to the railway contractors of printed matters to sell the news weekly subject to proper review of that paper and final orders which would be given later.
The General Manager asked the petitioner to supply copies of 12 old issues which was done.
Finally, the petitioner was informed by means of a letter dated the 16th March: 1965 that the sale of the weekly "The Indian Observer" could not be permitted on the railway stations.
In the return which was filed by the Joint Director, Traffic (General), Railway Board, it was not denied that the news weekly "The Indian Observer" was being sold at the, railway stations by the licensed contractors.
It was asserted that the petitioner had been publishing "sexy and obscene literature" Lind the licensees had been raising objections on this score.
The articles published in the Pews weekly were considered to be of low taste, and it was decided that it would not be in public interest to allow its sale at the railway Platforms by the, licencees.
The allegations made in the petition about the statements relating to corruption and maladministration in the Railways which had been published in some of the issues of the news weekly was not denied.
It was, however.
maintained that the Railway Board had taken the action 868 not because of the publication of those articles but because of the sexy and obscene literature of low taste which was being published in the news weekly.
Before, the High Court, section 28 of the Indian Railways Act 1890, hereinafter called the "Act", and the relevant sub clauses of clause 742 of the Indian Railway Code were pressed into service for challenging the ban which had been imposed on the sale of the news weekly.
The High Court was of the view that the petitioner before it had cited and produced instances of publications which were freely on sale on the bookstalls on the railway platforms to show that the material which was sought to be excluded or) grounds on obscenity, was hardly distinguishable from the other popular magazines of foreign and Indian origin.
Reliance was placed on the provisions of clause 742 of the Indian Railway Code which established that a publication to attract the ban imposed by the Railway Board must have been previously prohibited by the Government.
As the Railway Board was not authorised to exclude any publication from sale on its own determination that it was obscene, it was held that the order which was made by that Board was without authority.
The ban had hit the writ petitioner who had been made the object of discriminatory treatment.
Consequently, the restriction imposed on the sale of "The Indian Observer" was quashed.
Section 120A of the Act which was inserted for the first time by Act No. 13 of 1959 provides that if a person canvasses for any custom or hawks or exposes for sale any article whatsoever, in any railway carriage or upon any part of a railway except under and in accordance with the terms and conditions of a licence by the railway administration shall be punishable with fine which may extend to two hundred and fifty rupees.
He can also be removed from the carriage or any part of the railway by any railway servant so authorised.
It appears that prior to the insertion of this section, rules hadbeen framed under section 47 (1) of the Act.
Rule 17 ofPart 11 of the Rules laid down that no person could canvass for any custom or hawk or expose for sale any article whatsoever, on any train, station, platform or premises without a licence granted by the railway administration.
Clause.
I of Rule 17 has been incorporated in section 120A(1) of the Act in 1959, that Clause having been deleted from the rule.
The book stalls on the railway platforms where books, manazines and newsp apers are sold, belong to the licencees who have entered into an agreement with the President of India.
It is not disputed that according to the usual clauses in these agreements of licence, the ale of newspapers shall not be stopped by the licencees at any time save when it is due to causes beyond the, control of the: 869 licensee.
The learned Solicitor General produced a sample agree ment in court which was not objected to by the counsel for the respondent.
According to clause 3(b) thereof the licensor can reserve to himself the right to require the licencee to sell specified books or types of books and periodicals and the licencee was bound to comply with such requirements.
Under clause 5 the licensor had the right of prohibiting the sale, or exhibition of any publication of an obscene or scurrilous nature and of any publication to which good, sufficient, and reasonable objections could be shown and the decision of the licensor was to be final and binding oil the licensee.
The Railway Board which is the appellant before us has issued certain instructions and laid down essential principles and policy directions which have been Published in the form of a Code called the "Indian Railway Code" for the Traffic Department (Commercial).
It may be Mentioned that the Solicitor General himself maintained that all those were of a mandatory nature and it is stated in the preface to the Code.
Chapter VII, Part A of this Code deals with catering and vending services.
Part B relates to book stalls, sale of newspapers and periodicals on railway platforms.
Clause 742 to the extent it is material is reproduced below (v) The sale of obscene books and pictures and publications prohibited by the Government should be strictly banned.
(viii)The contractors should provide equal opportunity to all the popular newspapers for in their stalls on the same terms.
A list of popular newspapers and magazines should be drawn up by the Railway Administration in consultation with the Zonal Railway Bookstall Advisory Committee".
The main argument of the learned Solicitor General on behalf of the appellant is that sale of books on railway platforms or in railway carriages is a matter which is regulated by the terms of the agreement of licence between the bookstall contractors and the railway authorities and it is open to the appropriate authority to stop the sale of any newspaper or publication which was considered obscene or scurrilous or to which sufficient and reasonable objections could be shown.
In the letter of the Railway Board dated March 26, 1965 it was stated that it had come to the Board 's, 870 notice that the "Indian Observer" generally contained "articles written in very low taste bordering oh obscenity".
It was further .stated that after a perusal of few Copies of the said weekly the Board had come to the conclusion that it was not fit for sale at railway stations.
It was desired that the book stall contractors should be, instructed to stop with immediate effect the sale of the "Indian Observer" from their bookstalls as well as on the platforms as also along train side and in station premises.
According to the Solicitor General the action taken by the Railway Board was perfectly competent and was taken in accordance with the terms of the licence granted to the book stall contractors.
It is urged that ,the respondent had no right or locus standi to insist on or ask for the sale of the Indian observer oil the platforms etc., which are the private property of the railway and where the sale .of any publication could only be subject to such terms and conditions as obtained between the licensor or licencee.
Before the High Court and before us the main complaint of the present respondent is based On an infraction of Article 14 of the Constitution and it has been asserted that the news weekly "Indian Observer" was singled out for discriminatory treatment inasmuch as publications containing similar material were not prohibited from sale by the Railway Board on the book stalls at the platforms and in the trains etc.
The High Court had found as a fact that publications which were freely on sale on the book stalls to whom licences had been given were such that they were hardly distinguishable from the "Indian Observer" on the ground news weekly inquestion had been sold on railway platforms since 1963 nor wasit suggested that the Railway Board had ever accorded individual sanction for the sale of every single book and publication at the book stalls of the Railway Administration.
Now in the Indian Railway Code the policy or the principle laid down in categorical terms in sub clause (viii) of Clause 742 is that the contractor should provide equal opportunity to all the popular newspapers for sale in their stalls on the same terms.
This was subject to certain conditions, one of which was that the sale of obscene books and pictures and publications prohibited by the Government should be strictly banned.
(vide sub clause v).
The letter written by the railway itself to which a reference has been made, does not impose the ban on the ground that the "Indian Observer" is an obscene publication which has been prohibited by the Government.
In that letter there was first a recital of what had come to the Board 's notice i.e. that the articles written in the said news weekly were in very low taste bordering on obscenity.
There was no finding or decision that it was a publication which was obscene.
The conclusion of the Board 871 simply was that the "Indian Observer" was not fit for sale at the Railway stations.
The other condition laid down in sub clause (v) that its sale had been prohibited by the government was neither mentioned nor has it been shown that any such order had been made by the government prohibiting the sale of the "Indian Observer" on the ground that it is obscene.
The learned Solicitor General contends that the word 'Government ' in sub clause (v) means the Railway Board because according to section 2 of the , Central Government may by notification in the official gazette invest the Railway Board either absolutely or subject to conditions with all or any of the powers or functions of the Central Government under the Act.
Our attention has not been drawn to any provision in the Act or the rules framed thereunder by which the Central Government can prohibit the sale of any obscene book, picture or publication on.
It appears that the aforesaid clause.
has reference to a prohibition 'unposed by the Central Government under some enactments other than the Act.
It is not claimed that the Railway Board could impose a ban under any other enactment.
Nor has it been suggested that the Central Government had passed any order prohibiting the sale of the Indian Observer under any statutory provision.
Even on the assumption that the Board could make such an order as is contemplated by sub clause (v) of clause 742 it cannot take any advantage of that provision because in the letter dated March 26, 1965 it was nowhere stated that the publication of the news weekly was being banned on the ground of obscenity.
It is thus apparent that the High Court was fully justified in taking the view that the "Indian Observer" had been sin led out for being banned and this clearly amounted to a discriminatory,treatment.
The question that has next to be resolved is whether article 14 could be invoked by the respondent in the present case.
It has not been and indeed cannot be disputed that the Railway Board will fall within the definition of "State" as given in article 12 of the Constitution.
The learned Solicitor General has relied on Railway, Board vs Niranjan Singh(1).
It was laid down that there was no fundamental right under article 19(1) for anyone to hold meetings in government premises.
The Northern Railway was the owner of the Premises and was entitled to enjoy its property in the same manner as any private individual, subject to any such restrictions as the law or the usage placed on them.
We are unable to appreciate how the ratio of that decision could be applied to the present case.
The meetings of workers which had taken place there had been held inside workshops, stores and depots and within office compounds, Railway platforms may be the property (1).[1969] 3 S.C.R. 548. 872 of the railways, but it cannot be disputed that every bona fide traveller or every other member of the public who, buys a platform ticket can have access to the railway platforms.
It is true that under Rule 15 of the General Statutory Rules and Orders, a railway administration may exclude and, if necessary, remove from the station platform or any part of the railway premises any person who is not a bona fide passenger and who does not have any business connected with the railway or any person who having arrived at a station by train and having no business connected with the railway refuses to leave the railway premises when required to do so.
But that is a right which is reserved for being exercised only in the circumstances mentioned in the rule.
There is no analogy between a station platform and a government office.
Even otherwise the crux of the matter is that the respondent is not seeking to us the station platform or any part of the railway premises by sending any of its own representatives to hawk or sell the news weekly there.
All that the respondent says is that the railway administration has itself directed that the bookstall contractors who were its licensees should provide equal opportunity to all the popular newspapers for sale in their stalls.
These very contractors are now being directed to discriminate between the respondent and owners or publishers of other popular newspapers on grounds which have no legal basis or justification.
The administrative act or order of the Railway Board can, therefore, be challenged under article 14.
The respondent is not asking for the enforcement of any such fundamental right as would come within the rule laid down in the previous decision of this Court.
In other words what the present respondent is challenging is the order of the Railway Board which led to the stoppage of the sale of the news was weekly on the Railway platforms etc.
If that order is discriminatory and, cannot be justified on anyof the well known grounds.
the respondent can challenge it in a Petition under Art.226 of the Constitution as violative of Art.14.
There is no parallel between the facts of this case and the decision relied upon by the learned Solicitor General.
We concur with the view of the High Court that the impugned order of the Railway Board was discriminatory.
No proper or valid grounds have been shown for sustaining the discrimination made.
A certain amount of discussion took place before us with regard to the applicability of section 28 of the Act which contains pro hibition against under preference being shown by the Railway Administration in any respect whatsoever.
Tn the view that we have taken about the applicability of article 14 we do not consider it necessary to decide whether the respondent could take advan tage of the provisions of that section.
873 Lastly, we may refer to a preliminary objection which was raised on behalf of the respondent to the certificate which was granted by the High Court.
It has been urged that the certificate is defective because in the order dated July 7, 1968 granting it the Bench has virtually given a decision as if an appeal was being entertained against the judgment dated August 11, 1965 by which the writ petition was allowed.
It does appear that Deshpande J., who delivered the order of the Division Bench granting the certi ficate has made certain observations which seem to suggest that the previous decision was incorrect.
Although such an order will not per se vitiate the certificate, both judicial propriety and decorum demand that a Bench while considering the question of granting certificate for appeal to this Court ought not to be critical of or express any dissent from the judgment appealed against because it has no such jurisdiction and all that it has to decide is whether the requirement of the Articles of the Constitution on which a certificate can be granted, have been satisfied.
The appeal fails and it is dismissed with costs.
G.C Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The sale of the Indian Observer, a news weekly, at railway platforms was banned by an order of the appellant board in March 1965.
The respondent who was owner and publisher of the Indian Observer filed a writ petition in the High Court alleging that the ban had been imposed because the new weekly had carried certain articles which were critical of the Railway administration.
The appellant 's case in the High Court was that the ban had been imposed because the news weekly carried sexy and obscene matter.
The High Court allowed the writ petition holding that similar publications were allowed to be sold by the licencees of railway bookstalls and the ban on Indian Observer was therefore dis criminatory.
The High Court also held that under clause 742 of the Indian Railway Code the appellant had no authority to impose the ban.
In appeal against the High Court 's decision.
HELD : (i) In the Indian Railway Code the policy and principle, laid down in categorical terms in sub clause (viii) of Clause 742 is that the contractor should provide equal opportunity.
to all the popular newspapers for sale in their stalls, on the same terms.
This was subject to certain conditions one of which in sub clause (v) was that the sale of obscene books and pictures and publications by the government should be strictly banned.
However the letter written by the railway dated March 26, 1965 did not impose the ban on the ground that Indian Observer was an obscene publication which had been prohibited by the government.
In that letter there was first a recital of what had come to the Board 's notice i.e., that the articles written in the said news weekly were in very low taste bordering on obscenity.
There was no finding or decision that it was a publication which was obscene.
The conclusion of the Board simply was that the Indian Observer was not fit for ,ale, at Railway station,;.
The other condition laid down in sub clause (v) that its sale has been prohibited by the Government was neither mentioned nor had it been shown that any such order had been made by the government prohibiting the sale of the Indian Observer on the ground that it was obscene.
The Central Government was not shown to have, any power under the Railways Act or rules thereunder to ban the sale of any obscene book or publication and it was not claimed that the Railway Board could impose the ban under any other enactment.
For the above reasons the order imposing the ban could not be justified under clause 742 of the Indian Railway Code.
(ii) The High Court had found as a fact that publications which were freely on sale on the bookstalls to whom licences has been given were 866 such that they were hardly distinguishable from the Indian Observer on the ground of obscenity.
It was not disputed before the High Court that the news weekly in question had been sold on railway platforms since 1963 nor was it suggested that the Railway Board had ever accorded individual sanction for the sale of every single book and publication at the book stalls of the Railway Administration.
The Railway Administration had itself directed that the book stall contractors who were its licencees should provide equal opportunity to all the popular newspapers for sale in their stalls.
These very contractors were now being directed to discriminate between the respondent and owners or publishers of other popular newspapers on grounds which had no legal basis or justification.
The administrative act or order of the Railway Board (which fell within the definition of 'State ' in article 1) of the, Constitution) could therefore be challenged by the appellant in a petition under article 226 of the Constitution as violative of article 14.
Since no proper or valid grounds had been shown for sustaining the discrimination made, the view of the High Court that the impugned order of the Railway Board was discriminatory must be upheld.
Railway Board vs Niranjan Singh, [1069] 3 S.C.R. 548, distinguished.
(iii)Judicial propriety and decorum demand that a Bench while considering the question of granting a certificate for appeal to this Court ought not to be critical of or express any dissent from the judgment appealed against because it has not such jurisdiction and all that it has to decide is whether the requirement of the Articles of the Constitution on which a ,certificate can be granted have been satisfied.


judgement:
minal Appeal No. 117 of 1971.
Appeal by Special Leave from the Order dated February 11 1971 of the Rajasthan High Court in S.B. Criminal Misc.
Application , No. 152 of 1971.
Sobhag Mal Jain, for the appellant.
K. Balder Mehta, for the respondent.
907 The Judgment of the Court was delivered by Beg, J.
The appellant was convicted under Section 406 Indian, Penal Code and sentenced to six month 's rigorous impnsonment and a find of Rs. 500/ , and, in default of payment of fine, to three months further rigorous imprisonment, by the Munsif Magistrate of Karoli, District Bharatpur, Rajasthan.
On an appeal by him to the Court of Sessions, his conviction was set aside, but ,the Trial Court was directed to proceed with the case afresh from the stage at which the appellant should have been properly examined under Section 342 Criminal Procedure Code.
The appellant was then given a full opportunity, under Section 342 Criminal Procedure Code, to explain the facts and circumstances appearing against him in the case.
Thereafter, he also produced five witnesses in defence.
He was, however, convicted again and sentenced to two years rigorous imprisonment and to pay fine of Rs. 2,000/ , and, in default to undergo one year 's further rigorous imprisonment.
The appellant again appealed to the Court of Sessions which dismissed his appeal.
The appellant then filed a Revision application which was dismissed summarily by the High Court of Rajasthan.
Soon after that, the appellant made another attempt to invoke the inherent jurisdiction of the High Court, by applying under Sec.
561A Criminal Procedure Code, to get at least an illegality in the sentence corrected, but this also failed.
A prayer for a certificate of fitness of the case to appeal to this Court was also rejected by the High Court.
The appellant then applied under article 136 of the Constitution to this Court.
That application was admitted only an the question of the period of imprisonment awarded in default of payment of fine.
It is this question only which has been argued before us.
Section 33 of the Criminal Procedure Code runs as follows "33(1) The Court of any Magistrate may award such terms of imprisonment in default of payment of fine as it authorised by law in case of such default Provided that (a) the term is not in excess of the Magistrate s powers under this Code; (b) in any case decided by a Magistrate where imprisonment has been awarded as part of the substantive, sentence, the period of imprisonment awarded in default of payment of the fine shall not.
exceed one fourth of the period of imprisonment which such Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine. 908 (2) The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under Section 32".
The Munsif Magistrate who convicted the appellant had the powers of a Magistrate 1st Class which are restricted, by Section 32,sub.s(1) (a), to imposing imprisonment for a term not exceeding two years and fine not exceeding Rs. 2,000/ .
Reading Section 32 and 33 together, it was clear that, in the case before us, the Munsif Magistrate could not award more than six months imprisonment in default of payment of fine.
In answer to the appellant 's contention, based on Section 33 of the Criminal Procedure Code, learned Counsel for the State of Rajasthan placed Section 65 Indian Penal Code before us.
This Section reads as follows "65.
The term for which the Court directs the offender to be imprisoned in default of payment of a fine shall not exceed one fourth of the term of imprisonment which is the maximum fixed for the offence, if the offence be punishable with imprisonment as well as fine".
It will be seen that even where Section 65 Indian Penal Code is applied by a Court the term of imprisonment in default of payment of fine cannot exceed one fourth of the term of imprisonment which is the maximum period which can be awarded for an offence of which an accused is convicted.
An offence under Section 406 Indian Penal Code is punishable with imprisonment which can extend to only three years rigorous imprisonment and a fine.
Thus, even if Section 65 Indian Penal Code could be applied, the period of imprisonment in default of payment of fine could not exceed nine months.
It is clear that Section, 65 only fixes a maximum period of imprisotiment which can be awarded for default of payment of fine whenever any court convicts.
On the other hand, Section 33 Criminal Procedure Code governs specifically the powers of 1st Class Magistrates on this matter.
Section 33 Criminal Procedure Code also contains the principle embodied in Section 65 Indian Penal Code in its application to Magistrates.
Just as a 1st Class,Magistrate trying an offence punishable under Section 406 Indian Penal Code cannot impose the maximum amount of imprisonment prescribed by this Section, because his powers of awarding imprisonment are specifically limited to those conferred to Section 32 Criminal Procedure Code, so also he cannot, by resorting, to Section 65 Indian Penal Code, award a 'period of imprisonment in 909 default of payment of fine on the erroneous assumption that he has the power to award the maximum sentence prescribed by Section 406 Indian Penal Code.
Section 65 of the Indian Penal Code was enacted in 1860.
In 1872 Section 309 of the Criminal Procedure Code 1872 enacted : "where a person is sentenced to fine only the Magistrate may award such terms of imprisonment in default of payment of fine as is allowed by law provided that the amount does not exceed the Magistrate 's powers under this Act",.
It was held in Reg.
vs Muhammad Saib(1), that Section 309 of the Code of 1972 over ruled the provisions of Section 65 Indian Penal Code.
On a parity of reasoning, Section 33 of the Criminal Procedure Code of 1898, with which we are concerned here, would over ride Section 65 Indian Penal Code.
or, to be more accurate, apply more specifically to Magistrates.
In Queen Empress vs Venkatesagadu & Ors.
(2) it was held that Section 33 of the Criminal Procedure Code of 1882 did not authorise a Magistrate to pass sentence in default of payment of fine in excess of the term prescribed by Section 65 Indian Penal Code.
Here, reliance was placed upon a decision of Full Bench of the Allahabad High Court in the Empress of India vs Darba & No case has been cited before us in which an attempt was made to justify an order of a Magistrate, whose jurisdiction to punish is limited by Section 33 Criminal Procedure Code, by applying Section 65 Indian Penal Code.
It is obvious that the two Sections must be harmonised.
This means that, while a Magistrate 's powers are specifically limited by Section 33 Criminal Procedure Code, they must also be so exercised as not to contravene Section 65 Indian Penal Code.
As the sentence of one year 's rigorous imprisonment in default of payment of fine passed by the Munsif Magistrate was in excess of his powers, we allow this appeal to the extent that we reduce only the sentence of one year 's rigorous imprisonment awarded in default of payment of fine to six months rigorous imprisonment The rest of the sentence, which is quite legal, must stand.
We may observe here that it would have been better if this obvious illegality and excess of power could have been corrected by the High Court when the matter was brought to its notice by means of an application under Section 561A Criminal Procedure Code.
V.P.S. (1) I.L.R. 1 mad.
277 (FB).
(2) I.L.R. (3) I.L.R. 1 All.

summary/full:
The appellant was convicted by a first class Magistrate under section 406, I.P.C., and was sentenced to two years regorous imprisonment, a fine of Rs. 2000/ and, in default to one year 's further rigorous imprisonment.
On the question of the period of imprisonment that could be imposed in default of payment of fine, HELD : Even if section 65, I.P.C., could be applied the period of imprisonment in default of payment of fine could not exceed nine months since an offence under section 406 I.P.C. is punishable with imprisonment up to three years.
But reading sections 32 and 33, Cr.
P.C. together the Magistrate could not have awarded more than six months imprisonment in default of payment of fine.
The terms section 33 Cr.
P.C. and section 65 I.P.C., must therefore be harmonised.
Hence it must be held that while a Magistrate 's power are specifically limited by section 33 Cr.
P.C. they must also be exercised so as not to contravene section 65 I.P.C. [908 D G] Therefore, just as a First Class Magistrate trying an offence punishable under section 406 I.P.C., cannot impose the maximum sentence of imprisonment prescribed by the section, because this powers of awarding imprisonment are Specifically limited to a term not exceeding two years by section 32, Cr.
P.C. so also necessary , by resorting to section 65 I.P.C., award a period of imprisonment in default of payment of fine, on the erroneous assumption that he has the power to award the maximum sentence prescribed by section 406 1 P C. [908 G H; 909 A] Hence, three sentence of imprisonment in default of fine cannot exceed six months.
Reg vs Muhammad Sahib, I.L.R. ; Queen Empress vs Venkatesagadu, 1.
L. R. and Empress of India vs Darba, I.L.R.
I All. 46.1, referred to.


judgement:
Appeal No. 1499 of 1971.
Appeal from the judgment and order dated August 23, 1971 of the Delhi High Court in Civil Writ Petition No. 517 of 1971.
M. C. Chagla and R. Gopalakrishnan, for the appellants.
Jagadish Swarup, Solicitor General of India, G. L. Sanghi, B. D. Sharma and section P. Nayar, for respondents Nos. 1 and 2.
A. K. Sen and H. K. Puri, for respondents Nos. 15, 39 to 48, 51, 103 and 123.
J. D. Jain, for respondent No. 55.
The Judgment of the Court was delivered by Ray, J.
This in an appeal by certificate from the _judgment dated 23 August, 1971 of the High Court of Delhi dismissing the writ petitions of the appellants.
The two appellants were promoted in the years 1958 and 1959 respectively to the Military Engineer Service Class I (hereinafter referred to as the Class I Service).
The appellant No. 1 _joined the Military Engineer Service as a temporary overseer on 1 May, 1942.
He was promoted to the grade of Superintendent Grade I on 1 May, 1949.
In the month of April, 1957 he was selected to be promoted to the grade of temporary Assistant Executive Engineer in Class I Service and he was promoted in fact in the month of April, 1958.
Respondents Nos.
4 to 21, 107 to 122 and 124 to 126 were appointed to the said Class I Service after they had appeared at competitive examination while the rest were appointed by direct recruitment after having been interviewed by the Union Public Service Commission.
All the respondents were appointed to the said Class I Service in the years 1962, 1963 and 1964.
The appellants contended first that the respondents who were directly appointed to Class I Service by interview were not within the purview of recruitment to Class I Service by competitive examination.
The Military Engineer Service Class I (Recruitment, 900 Promotion and Seniority) Rules which came into force on 1 April, 1951 speak in rule 3 of recruitment to the Class I Service (,a) by competitive examination in accordance with Part 11 of the Rules and (b) by promotion in accordance with part III of the Rules The appellants contended that appointment to Class I Service by interview was not one of the methods recruitment contemplated in the Rules, and, therefore, the respondents who were appointed by interview could not be said to be validly appointed in accordance with the Rules.
The second contention of the appellants was that the respon dents were recruited to Class I Service by interview and competitive examination after the appellant had been promoted to Class I Service and were therefore not to be confirmed in permanent posts before the appellants.
Class I Rules mention recruitment by competitive examination and by promotion.
In 1961 on the results of the competitive examination no candidates were avail able for allotment to Class I Service against temporary posts.
In 1962 there was a state of emergency.
Engineers were immediately required to fill the temporary posts in Class I Service.
To meet the emergency the Union Government in consultation with the Union Public Service Commission decided to recruit candidates by advertisement and selection by the Union Public Service Commission.
The Government with the aid of selection and interview by the Union Public Service Commission directly recruited some respondents to Class I Service in the years 1962, 1963 and 1964.
The candidates were selected after viva voce examination.
It, therefore, follows that the method of recruitment by interview was adopted to meet the emergency specially when the mode of appointment by competitive exammation failed.
The candidates who were selected were put through a period of probation of 2 years.
Only on a satisfactory completion of probation the candidates were allowed to continue in service.
On completion of 3 years continued service in the grade and after qualifying the necessary departmental test the respective officers were declared quasipermanent in the grade in terms of Central Civil Service (Temporary Service) Rules.
During the years 1962, 1963 and 1964 particularly and until the year 1969 the Class I Service Rules were not statutory in character.
The Union Government relaxed the Rules both in regard to recruitment by interview and in regard to the quotas fixed by the Rules for direct recruitment and recruitment by promotion to Class I Service.
In the year 1967 rule 20 of Part II of Class I Service Rules was amended by introduction of sub rules (h), (i), (i) and (k).
901 Rule 20 referred to the period of probation in the case of recruitment by competitive examination: Sub rule (i) stated that "50 per cent of the permanent vacancies to be filled through the competitive ad hoc recruitment conducted by the Commission after 17 May, 1963, shall be reserved for graduates engineers who are commissioned in the Armed Forces on a temporary basis during the present emergency and later released," subject to certain conditions enumerated therein.
Rule 24 was also introduced by way of amendment in the year 1967.
Rule 24 occurs in Part IV of the Rules.
It may be stated here that Part 11 of the Rules deals with recruitment to Class I Service by competitive examination, Part HI with recruitment to Class I Service by promotion and Part IV deals with miscellaneous Rules.
Rule 24 stated that where the Central Government was of opinion that it was necessary or expedient so to do, it might by order, for reasons to be recorded by it in writing and after consultation with the Union Public Service Commission relax all or any of the rules with respect to any class or category of persons or posts.
In 1969 the Class I Service Rules were amended.
The impor tant amendments were rule 4 and substitution of rule 21 in place of rules 21, 22 and 23.
Rule 4 dealt with the quotas fixed for direct recruitment and promotion to Class I Service.
The substituted rule 21 stated that appointment by promotion was to be made by selection and promotion was not to be as a matter of right.
The real importance of the amendments of the rules in the year 1969 lies in the fact that the amendments were made by the President in exercise of the powers conferred by the proviso to Article 309 ' of the Constitution.
As a result of the 1969 amendment it follows that the entire body of rules of Class I Service became statutory rules by incorporation.
The appointments to Class I Service by interview were made by the Government in consultation with the Union Public Service Commission.
The selection was made by the Union Public Service Commission.
The appointments by competitive examination proved fruitless.
The country was in a state of emergency.
Appointment and selection by interview was the only course possible.
It could not be said that all appointments should have been made by promotion.
That would be not in the interest of the Service.
The Service Rules were administrative in character.
The Government relaxed the rules.
The amendments of the rules in 1967 recognised the reality of the situation of appointment by interview.
That is why the 1967 amendment recognised that 50 per cent of "the direct recruits by competitive/ad hoc appointment were to be reserved for graduate engineers who were commissioned in the Armed Forces on a temporary basis.
" 902 on a temporary basis.
" Ultimately, when the rules were, amended in 1969 and the rules became statutory in character not only the recruitment by interview but also the relaxation of rules was regularised.
The result is that the respondent who were appointed by interview fell within the class of direct recruits.
The only other contention on behalf of the appellants was that they were promoted to Class I Service in the years 1958 and 1959 respectively and were thus senior to the respondents who were recruited to the Service subsequently, and, therefore, the appellants should be confirmed in Class I Service in priority to the respondents.
The promotion of the appellants was to temporary posts in Class I Service.
The appellants were to be confirmed in permanent posts.
The respondents who were appointed by competitive examination and by interview were also appointed to temporary posts.
They were also to be confirmed in permanent posts after having served the period of probation in accordance with the rules.
The recruitment to Class I Service during the years 1951 to 1958 was on the quotas fixed by rule 4 of the Class I Rules on the ratio of 10 per cent for departmental promotion and 90 per cent for direct recruitment.
Though rule 4 fixed the quotas on the ratio of 10 per cent for departmental promotion and 90 per cent for direct recruitment the Union Government in consultation with the Union Public Service Commission relaxed the rules and revised as an interim measure the existing quota of 10 per cent of departmental candidates for promotion to 50 per cent in the years 1959 to 1963 inclusive.
From 1964 to 1968 the quota fixed by rule 4 was followed again.
Finally, in 1969 the rules were amended and the quota for departmental promotion was 25 per cent and for direct recruitment at 75 per cent.
In this background the recruitment against temporary posts between the years 1951 and 1971 was indicated by a chart prepared by the Government and accepted to be correct.
The recruitment against temporary posts indicated the following features Between 1951 and 1956 the total recruitment against temporary posts was 84 whereof 75 were allocated for direct recruits and 9 for departmental promotees.
But in fact the recruitment by interview was for 29 and by departmental examination.
During the years 1957 and 1963 the number of vacancies for recruitment to temporary posts was 675 whereof 339 were allocated for direct recruits and 336 for departmental promotees.
Only 20 were recruited by competitive examination and 171 by interview and the remaining 484 were instances of departmental promotion.
Be tween the years 1964 and 1968 the total recruitment was 264 whereof 238 were allocated for direct recruits and 26 for departmental promotees.
In fact, recruitment was of 139 persons by 903 competitive examination and of 98 by interview and 27 'by departmental promotion.
Between the years 1969 and 1971 there were 45 vacancies to temporary posts whereof 33 were allocated for direct recruits and 12 for departmental promotees.
I were recruited by competitive examination and 34 were promoted departmentally.
The recruitment against temporary posts during the years 1951 and 1971 shows that during the relevant years 1959 to 1963 the Union Government relaxed the quota and increased the quota of 10 per cent to 50 per cent for departmental promotion.
At cannot therefore be said that any injustice was done to the departmental promotees or that any advantage was gained by the persons who were recruited by interview.
It is because of the conditions of emergency that the quota for filling the temporary posts was half for departmental promotees and half for direct recruitment.
The confirmation against permanent posts was also in according ance with the quotas fixed by rule 4 for the years 1951 to 1958, namely, 10 per cent for departmental promotion and 90 per cent for direct recruitment.
During the years 1959 to 1963 inclusive the Union Government in consultation with the Union Public Service Commission relaxed the quota rule and increased the quota for departmental promotees from 10 per cent to 50 per cent and reduced the quota of direct recruitment from 90 per cent to 50 per cent.
In the year 1959 126 permanent posts were available whereof 63 were allocated for direct recruits and the other 63 were for departmental promotees.
In 1960 there were 14 permanent posts and 7 were allocated for direct recruits and 7 for departmental promotees.
Again, in 1961 there were 23 permanent posts available.
12 were allocated for direct recruits and 11 for departmental promotees.
For 1962 there were 20 permanent posts whereof 10 were allocated for direct recruits and the other 10 for departmental promotees.
In 1963 there were 11 permanent posts whereof 5 were allocated for direct recruits and 6 for departmental promotees.
In 1964 there were 9 permanent posts whereof 8 were allocated for direct recruits and one for departmental promotee.
In 1965 there were 15 permanent posts whereof 13 were allocated for direct recruits and two for departmental promotees.
In 1966 there were 113 permanent posts whereof 82 were allocated for direct recruits and 11 for departmental promotees and 20 for released officers in accordance with the revised rule in the year 1967.
In 1967 there were 45 permanent posts whereof 40 were allocated for direct recruits and 5 for departmental promotees.
In 1968 there were 14 permanent posts available whereof 13 were allocated for direct recruits and one for departmental promotee.
The position with regard to filling of permanent posts shows that during the years 1951 to 1958 the quota was 10 per cent for 904 departmental promotees and 90 per cent for direct recruitment but during the years 1959 to 1963 the quota was changed with the result that half of the permanent posts were filled by departmental promotion and the other half by direct recruitment.
From 1964 to 1968 the old quota of 10 per cent for departmental promotion and the remaining 90 per cent for direct recruitment was resorted to.
In 1969 rule 4 was changed 'with the result that there were 25 per cent for departmental promotion and the remaining 75 percent for direct recruitment.
In the year 1959 the direct recruits who were confirmed in permanent posts were recruited by the Union Public Service Commission by interview during the years 1951 to 1956.
In 1960 the direct recruits through interview who were confirmed had been selected through interview by the Union Public Service Commission between the years 1953 and 1956.
In 1961 the direct recruits who were confirmed in permanent posts were those who had been selected by the Union Public Service Commission through interview during the years 1956 to 1957.
In 1962 the direct recruits who were confirmed in permanent posts were those who had been selected by the Union Public Service Commission through interview during the years 1956 to 1958.
In 1963 the direct recruits who were confirmed in permanent posts were those who had been selected by the Union Public Service Commission through interview between the years 1958 to 1961.
In 1964 the direct recruits who were confirmed in permanent posts were those recruited in 1962 by the Union Public Service Commission through interview.
In 1965 the direct recruits who were confirmed in permanent posts were those recruited by the Union Public Service Commission through interview in 1962 and 1963.
In 1965 13 direct recruits were confirmed and they included some of the respondents.
In 1966 82 direct recruits were confirmed against permanent posts and they were persons who had been selected by the Union Public Service Commission through interview during the year 1963 and they included some of the respondents.
In the year 1959 when the Government in consultation with the Union Public Service Commission revised as an.
interim measure the increase of the quota of departmental promotion of candidates from 10 to 50 per cent and followed that system up to the end of 1963 a question arose as to how the then existing permanent vacancies were to be filled and the Union Public Service Commission advised that the same might be filled by confirmation of direct recruits, namely, those recruited on the basis of competitive examination and by advertisement and selection and promotees in the ratio of 11.
The advice of the Union Public Service Commission was accepted and the Departmental Promotion Committee acted on that basis.
It is apparent that during those years there was a relaxation in the observance of rules in the case of appellants and the other departmental promotees.
The Union Government 905 all throughout acted in consultation with the Union Public Service Commission.
The departmental promotees gained considerable advantage by relaxation of the rules.
The direct recruits were not shown any preference at all.
The proportion of confirmation of departmental promotees and of direct recruits by interview was 1 : 1 In the year 1967, the Government was again faced with the question of confirmation of direct recruits by interview as well as by competitive examination against permanent vacancies in the grade falling in the direct recruitment quota prescribed in the rules.
The Union Public Service Commission advised that direct recruits by interview and by competitive examination could be confirmed against permanent vacancies within the fixed quota of direct recruits.
The result was that in 1969 the Class I Service Rules were amended and the quota for departmental promotion was raised from 10 to 25 per cent and the quota of direct recruits was reduced from 90 to 75 per cent.
The appellants can have no grievance with regard to confirmation.
The departmental promotees have been confirmed against permanent posts within their quota in order of seniority.
Departmental promotees who have been confirmed up to the year 1970 had been promoted to Class I Service before the appellants.
On the other hand, direct recriuts consisting of those recruited by competitive examination as well as by interview have been confirmed against permanent vacancies within their quota.
As a matter of fact between the years 1959 and 1963 inclusive the quota fixed for departmental promotees was increased from 10 to.50 per cent and thereby the confirmation of departmental promotees and direct recruits was equally balanced.
The direct recruits who were appointed by interview fell within the class of direct recruits.
The quota fixed for direct recruits was never infringed by absorbing direct recruits by interview beyond the quota.
The confirmation of direct recruits and departmental promotees against permanent vacancies was in accordance with the quota fixed.
By reason of relaxation of rules in regard to increase of quota for departmental promotees they gained advantage during the years 1959 to 1963 when because of the emergency direct recruits by interview were selected by the Union Public Service Commission.
For the foregoing reasons the appeal fails and is dismissed.
In view of the fact that there was no order as to costs in ' the High Court parties will bear their own costs.
G.C. Appeal dismissed.

summary/full:
The two appellants were promoted in the years 1958 and 1959 respectively to the Military Engineer Service Class 1.
Some of the respondents were appointed to the said class I Service after they had appeared at the competitive examination while the rest were appointed by direct recruitment after having been interviewed by the Union Public Service Commission.
All the respondents were appointed to the service in the years 1962, 1963 and 1964.
The respondents were confirmed in their posts before the appellants.
The appellants filed writ petitions in the High Court which were dismissed.
In appeal before this Court the appellants contended (i) that the respondents who were directly appointed to class I service by inter view were not within the purview of recruitment to Class I service by competitive examination under the Military Engineer Service Class I (Recruitment Promotion and Seniority) 'Rules; (ii) that the respondents were recruited to Class I Service by inter view and competitive examination after the appellant had been promoted to Class I service and were therefore not to be confirmed in permanent posts before the appellants.
HELD : (i) The appointments to Class I Service by interview were made by the Government in consultation with the Union Public Service Commission.
The selection was made by the Union Public Service Commission.
The appointment by competitive examination proved fruitless.
The country was in a state of emergency.
The appointment and selection by interview was the only course possible.
It could not be said that all appointments should have been made by promotion; that would not he in the interest of the service.
The Service Rules were administrative in character.
The Government relaxed the rules.
The amendments of the rules in 1967 recognised the reality of the situation of appoint ment by interview.
That is why the 1967 amendment recognised that 50% of "the direct recruit by competitive ad hoc appointments were to be reserved for graduate ceneers who were commissioned in the Armed Forces on a temporary basis Ultimately, when the rules were amended in 1969 and the rules became statutory in character, not only the recruitment by interview but also the relaxation of rules was regularised.
The result is that the respondents who were appointed by interview fell within the Class I direct recruits.
[901 F 902 A] (ii) The appellants should have no grievance with regard to confirmation.
Departmental promotees had been confirmed against permanent posts within their quota in order of seniority.
The departmental promotees who had been confirmed up to the year 1970 had been promoted to 899 class I Service before the appellants.
On the other hand direct recruits consisting of those recruited by competitive examination as well as by inter view had been confirmed against permanent vacancies within their quota.
As a matter of fact between the years 1959 and 1963 inclusive the quota fixed for departmental promotees was increased from 10 to 50% and thereby confirmation of departmental promotees and direct recruits was equally balanced.[905 D F] Accordingly, the appeal must fail;


judgement:
o. 1052 of 1971.
Appeal by special leave from the judgment and order dated May 27, 1971 of the Punjab and Haryana High Court in Execu tion Second Appeal No. 1783 of 1970.
M. C. Chagla, V. C. Mahajan, section K. Mehta and K. L. Mehta and K.R. Nagaraja, for the appellant.
M. C. Setalvad, 0.
C. Mathur, J. B. Dadachanji and Ravinder Narain, foi the respondent.
The Judgment of the Court was delivered by P. Jaganmohan Reddy,, J.
The respondent who was constructing a building, had leased it out on a monthly tenancy to the appellant on the 1st November 1959.
The building was ulti mately completed in March 1960.
On 14 1 1963 he filed a suit and got a decree for ejectment on 14 8 1969.
On 29 8 1969 he filed an execution petition but the executing court dismissed it on 16 4 1970 on the ground that the conditions prescribed in the notification of the Government of Punjab under section 3 of the Punjab Urban Rent Restriction Act 1949 (hereinafter called the Act ') dated 30 7 1965, exempting such decrees from section 13 of the said Act were not complied with.
An appeal against this judgment was unsuccessful.
On a second appeal the High Court held that the decree was executable inasmuch as that decree was exempted under the notification.
This appeal is by special leave against that judgment.
Before we notice the conditions prescribed for the exemption of decrees of eviction against tenants from the provisions of the Act, it is necessary to refer to section 13 of the Act in so far as it is relevant and the notification exempting decrees obtained by certain categories of landlords from those provisions.
It is wellknown that due to the non availability of housing accommodation in urban areas and the consequent hardship to tenants who were already occupying buildings on lease, almost all the States enacted legislation by and under which the landlords ' rights to evict tenants as well as the right to recover higher exorbitant rents were considerably cut down.
The main scheme of these Acts generally was to make it obligatory on landlords intending to 924 evict tenants to make applications before the authority prescribed under the Act only on the grounds specified in the particular legislation, The Rent Control Authority alone could make an enquiry and order eviction.
The jurisdiction of the civil courts was taken away.
In some of the States, such as in Uttar Pradesh, civil courts were allowed to entertain eviction suits but subject to prior leave being obtain from the District Magistrate.
In other words, in that State two rounds of litigation were provided for Similarly, applications for fixation of fair rent where the rent charged was considered to be exorbitant could also be made before these authorities.
These restrictions could not, however, serve as a panacea for solving the accommodation problem in urban cities consequent on the phenomenal migration of population into those areas which was further aggravated by large scale exodus due to the partition of India.
It, therefore, became necessary for each of the State Governments not only to undertake building schemes itself but also to encourage persons who had the means to build by exempting newly constructed building which were let out to tenants from rent control restrictions for a particular period.
One of such legislations is the Act with which we are now concerned.
Unlike other Rent Control legislations, this Act adopts rather a novel method, in that while it permits suits being filed and decrees obtained, it places restrictions against their execution except on specified grounds.
In this case, however, we are not concerned with the novelty of the legislation or the hard ship, expense and delay which is caused to the landlord or the tenant by the innovation adopted by it.
We may now read the relevant provisions of section 13 which are as under : " 13 (1).
A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or a fter the termination of the tenancy, except in accordance with the provisions of this section, or in pursuance of an order made under section 13 of the Punjab Urban Rent Restriction Act 1,947, as subsequently amended.
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf.
If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied (here the grounds upon which he should be satisfied have been set out) the controller may make an order directing the tenant to put the landlord in possession of the building or, 925 rented land and if the Controller is not so satisfied he shall make an order rejecting the application Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed three months in the aggregate.
(3) (a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession (The grounds on which he can apply have been set out) (b) The Controller shall, if he is satisfied that the claim of the landlord is bona fide make an order directing, the tenant to put the landlord in possession of the building or rented land on such date as may be specified by the Controller and if the ' 'Controller is not so satisfied, he shall make an order rejecting the application (c) x x x x x Provided that the Controller ipay give the tenant a reasonable times for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed three months in the aggregate.
(4) x x x x x (5) x x x x x The Government under section has been empowered to, direct that all or any of the provisions of the Act shall not apply to any particular building.
or rented land or any class of building or rented lands.
Pursuant to this power, the State Government was notifying exemptions from time to time during, a period of 20 years, the first notification it appears having been issued on the 8th March 1951 which exempted buildings constructed in 1951 and 1952 from the provisions of the Act for a period of 5. years with effect from the date of completion of any such building.
Thereafter followed several notifications which exempted buildings constructed in each of the years after 1952.
The notification with which we are now concerned was issued on 30 7 1965 and is in the following terms: ".
In exercise of the powers conferred by section 3 of the Punjab Urban Rent Restriction Act 1949 and all other powers enabling him in this behalf, the 13 L1061 Sup.
Cl/72 926 Governor of Punjab is pleased to direct that the provisions of section 13 of the said Act shall not apply in respect of decrees for ejectment of tenants in possession of building which satisfy the following conditions, namely : (a) Buildings constructed during the years 1959, 1960, 1961, 1962 and 1963 are exempted from all the provisions of the said Act for a period of five years to be calculated from the dates of their completion, and (b) During the aforesaid period of exemption suits for ejectment of tenants in possession of those buildings were or are instituted in civil courts by the landlords against the tenants and decrees of ejectment were or are passed".
Under the above notification, the provisions of section 13 are made inapplicable to decrees in respect of buildings constructed during the years specified in (a) for a period of 5 years to be calculated from the dates of their completion provided during the said period suits had been instituted by the landlords against the tenants.
There is no doubt, from the facts set out above, the building in respect of which exemption from the application of section 13 is being claimed, was completed in March 1960 and a suit had also been filed on 14th January 1963 before the expiry of the period of 5 years from that date.
It is contended by the learned Advocate for the appellant that the decree in that suit having been passed on 14th August 1969 after the period of 5 years from the date of construction, the exemption from the restrictions placed by section 13 will not be available, because according to him not only the suit should be filed but the decree for eviction should be obtained within the said period of 5 years.
This contention on the very face of it would lead to incongruity or would, if accepted, have the effect of nullifying the very purpose for which the exemption was being given.
We were reminded with a somewhat emphatic assertion what appears to us to be unexceptional that the Courts are not concerned with the policy of the legislature or with the result, whether injurious of otherwise, by giving effect to the language used nor is it the function of the Court where the meaning is clear not to give effect to it merely because it would lead to hardship.
It cannot, however, be gainsaid that one of the duties imposed on the Courts in interpreting a particular provision of law, rule or notification is to ascertain the meaning and intendment of the legislature or of the delegate, which in exercise of the powers conferred on it, has made the rule or notification in question.
In doing so, we must always presume that the impugned provision was designed to 927 effectuate a particular object or to meet a particular requirement and not that it was intended to negative that which it sought to achieve.
It is clear that the Government intended to grant certain inducements to persons who had ,the means to construct buildings by exempting any such building so constructed or a period of 5 years.
The period of 5 years could commence from the date of construction or from some other date.
Initially, as the earlier notifications would show, that exemption of 5 years was given from the date when the building was constructed but by the impugned notification it was intended to confer the benefit by giving exemption of 5 years from a subsequent date, namely, the date of the institution of a suit, provided it was instituted within a period of 5 years from the date of the construction of the building.
A closer reading of the notification would show ,that it was intended to clarify and provide a workable solution in respect of building constructed in 1959, 1960, 1961, 1962 and 1963.
These buildings had already been exempted, from the pro visions of section 13 by two earlier notifications, the first one in 1960 giving exemption upto 31 12 1963 and the second in 1963 for 5 years from the date of completion of the building.
It is clear from the language of the notification that what is exempted is the decree for ejectment of a tenant from the application of section 13.
The very purpose of exemption of buildings from the operation of section 13 was to give landlords the rights which as owners of buildings they had under the ordinary law, namely, to give them on lease act rents which they thought were remunerative and to evict tenants during that period without any fetters imposed by the Act.
If no provision was made for exempting such decrees in respect of the exempted buildings, the exemption granted will be illusory.
Clause (b), therefore, provided for the time during which that suit in which the decree has been passed should be filed.
The decrees passed in such suits will be executable free from the fetters imposed by section 13 of the Act.
It is obvious that the filing of a suit by itself does not confer any exemption be.cause what is exempted from the provisions of section 13 is the decree.
A suit filed, therefore, must end in a decree though that decree may be passed subsequent to the expiry of the 5 years ' period during which exemption from the application of section 13 has been granted.
The learned Advocate for the respondent has suggested a construction which is consistent with our reading of the notification and that is that the words 'were ' or 'are ' used in clause (b) both in respect of the filing of the suits and the, passing of the decrees would indicate that these suits should have been filed or are hereafter to be filed and likewise decrees of ejectment had been passed or are hereafter to be passed.
In other words, the suits must have been already filed during the period of exemption 928 or are to be instituted during such period.
This language had to be used because the 5 years ' exemption in respect of the buildings constructed in 1959 would end in 1964 while the notification was issued in 1965.
There is no question of suits being; filed in respect of these buildings hereafter, as such decrees in suits filed before 1964 would be exempted.
In respect of the buildings constructed in 1960, there would be some buildings in respect of which the five: years ' exemption period would have expired before the notification and, therefore, the suits in respect of such buildings i during the relevant period in 1960 should have been filed before that period expired and where the exemption expires after the notification, suits could be filed thereafter but before the ' exemption expires.
In respect of 1961, 1962 and 1963 there is of course no difficulty because there is sufficient period for filing suits if they had not been filed by the time the notification was issued.
Taking.
the typical case of a, building constructed in 1961, the period of 5 years ' exemption would expire in 1966 and under the first part of clause (b) it would be open to the landlord to file a suit for ejectment even on the last day of ;the expiry of the ;5 years exemption, If so, it would be absurd to postulate that a decree would be given immediately thereafter,.
as that would be the result, if 'the contention that :both the, suit and the, decree should be passed within the period of exemption, is accepted.
This could not have, been the intention of the Government in publishing the notification under section 3.
, It is clear to our minds, as it was to the High Court that under clause(b) the filing of the suit within the period of exemption is the only condition that is necessary to satisfy one of the requirements of the.
exemption, the other requirement being the passing of the decree in respect of which no time has been prescribed.
If the decree, as contended by the learned Advocate for the appellant, has to be obtained within the period of 5 years, there was no need to specify that the suit had to be filed within that period because the ,exemption from the requirements of section 13 is only.
in respect of the decree and not the suit, There was, therefore, no need to mention about the time of, the filing of the suit.
In the view we have taken, the construction placed by the High Court is the only construction that is possible on the language of the notification.
This appeal is accordingly dismissed with costs.
G.C. Appeal dismissed.

summary/full:
Under the Punjab Rent Restriction Act, 1949 a landlord can evict a tenant only on the grounds and according to the procedure provided in section 13 of the Act.
Section 3 of the Act provides for exemption to be granted by Government from the operation of section 13.
By notification dated July 30, 1965 the Government of Punjab granted such ex emption in respect of building constructed during the year 1959 to 1963 for a period of 5 years from the date of their completion, on the .condition that during the aforsaid period of exemption suits for ejectment of tenants in respect of those, buildings "were or are" institutes in civil courts and decrees of ejectment "were or are" passed.
The respondent had let out to the appellant a building which was completed in 1960.
A suit for ejectment of the appellant was filed in 1963 and decree was obtained in 1969.
In proceeding for execution the question was whether the .decree, having been obtained more than 5 years after completion of the building, was exempt from operation of section 13.
The High Court in second appeal held in favour of the respondent.
In appeal to this Court by special leave, the appellant contended that the decree in the suit having been passed after 1 period of 5 years from the date of construction, exemption from restrictions placed by section 13 will not be available because not only the suit should be filed but the decree for eviction should be obtained within the said period of 5 years.
HELD : The filing of the suit within the period of exemption is the only condition that is necessary to satisfy one of the requirements of the exemption, the other requirement being the passing of the decree in respect of which no time has been prescribed.
If the degree, as contended by the appointment has to be obtained within the period of 5 years, there was no need to specify the at the suit had to be filed within that period because the exemption from the requirements of section 13 is only in respect of the decree and not the suit.
[928 F] The use of the words 'were or are ' in respect of decree ,is A will as suits supports the above interpretation.
The suit should have been filed or are her , after, to filed and likewise decrees of ejectment bid been passed or are hereafter to be passed.
Further, a suit may conceivably be filed on the last day of the expiry of the 5 years exemption.
If so it will be absurd to postulate that a decree would be given immediately thereafter, as that would be the result, if the contention that both the suit.and the decree should be passed within the period of exemption.
is accepted.
[927 H 928 E] 923 A statue must be interpreted in the light of its object.
The very purpose of the exemption of buildings ' from 'the operation of section 13 was to give landlords the light which as owners of buildings they had under the ordinary law, namely, to give them on lease at rents which they thought remunerative and to evict tenant 's during that period without any fetters imposed by the Act.
If no provision was made for exempting such decrees in respect of the exempted buildings the exemption granted will be illusory.[1926 H 927 E] Accordingly the appeal must fail.