judgement:
No. 208 of 1963Petition under article 32 of the Constitution of India for the en forcement of fundamental rights.
B. D. Sharma, for the petitioner.
S.V.Gupte, Additional Solicitor General, S.P. Varma and R. H. Dhebar, for the respondent.
March 23, 1964.
The Judgment of the Court was delivered by WANCHOO, J.
This is a petition under article 32 of the Con stitution.
The petitioner was appointed as a Telegraphist by the Post Master General Nagpur in 1949.
In July 1960.
he was serving as an officiating Teleprinter Supervisor at Jaipur.
The employees of the Posts and Telegraphs Department (hereinafter referred to as the Department) went on strike from the midnight of July 11, 1960 throughout India and there was a similar strike at Jaipur.
The petitioner was on duty on that day from 12 noon to 8 p.m.
He says that after his duty was over, he did not go home but went to the dormitory where he fell asleep as he was tired.
At about 11 30 p.m. he woke up on hearing some noise and discovered that it was very late and then he wanted to go home.
But as he came out, he was arrested by the police on the ground that he was also one of the demonstrators, who were demonstrating outside in connection with the strike.
The arrest was made under the Essential Services Maintenance Ordinance, No. 1 of 1960, (hereinafter referred to as the Ordinance). 'On July 13, the petitioner was suspended on the ground that a criminal charge was pending against him in a criminal court.
405 However, the criminal charge was withdrawn on July 18, 1960.
On July 21, 1960, a charge sheet was served on the petitioner in the following terms: "That Shri Radhey Shyam Sharma I C/S Telegraphist, CTO Jaipur committed gross misconduct in that on the midnight of the 11th July 1960, he took part in a demonstration in furtherance of the strike of the P. & T. Employees in violation of the orders dated 8 7 1960 issued by the Government of India under the "Essential Services Maintenance Ordinance, 1960 (1 of 1960)" prohibiting strike in any postal, telegraph or telephone Service." An inquiry was made in the matter by the Post Master Gene ral, Central Services Nagpur to whom it was transferred as the petitioner had been appointed by that officer.
The enquiry officer found the petitioner guilty of the charge framed against him and thereupon a notice was issued to him to show cause why the penalty of reduction in the time scale by three stages for a period of two years affecting the future increments be not imposed upon him.
Thereafter the Post Master General after taking into account the explanation submitted by the petitioner to the show cause notice ordered that the pay of the petitioner should be reduced in the time scale by three stages for a period of two years and on restoration the period of reduction was not to operate to postpone his future increments.
Thereupon the petitioner filed an appeal to the Director General, Posts and Telegraphs.
The Director General directed further evi dence to be taken on certain lines before deciding the appeal.
However, no further evidence was given on behalf of the Department and the matter was re submitted to the Director General as it was Finally, the Director General considered the whole matter on the merits and rejected the appeal.
The present petition is a sequel to the order of the Director General, and the petitioner contends that the punishment imposed upon him is violative of his fundamental rights under articles 19(1)(a) and 19 (1) (b) and should be quashed.
Reliance is placed on his behalf on two cases of this Court in Kameshwar Prasad vs State of Bihar,(1) and O. K. Ghosh vs E. X. Joseph(2), Further it is contended that sections 3, 4 and 5 of the Ordinance are ultra vires, as they contravene sub clauses (a) and (b) of article 19 (1).
Lastly, it is urged that in any case there was no evidence on which it could be found that the charge against the petitioner had been proved.
(1) [1962] Supp. 3 S.C.R. 369.
(2) [1963].
Supp. 1 S.C.R. 789. 406 The petition has been opposed on behalf of the Union of India and it is urged that the Ordinance is perfectly constitutional and does not violate any fundamental rights.
It is further urged that the two cases relied upon by the petitioner are of no assistance to him, as they were concerned with R.4 A and Rule 4 B of the Central Civil Services (Conduct) Rules, 1955.
Lastly it is urged that there was evidence on which the authorities concerned could find the charge proved against the petitioner.
The first question that arises is whether ss.3, 4 and 5 of the Ordinance are violative of any fundamental rights en shrined in the Constitution.
The Ordinance as its name shows was passed in order that essential services may be maintained.
Its necessity had arisen because of a threat of strike inter alia by the employees of the Department.
Among "Essential Service" as defined in section 2 (1) is included the postal, telegraph or telephone service.
Section 3 of the Ordinance provides that "if the Central Government is satisfied that in the public interest it is necessary or expedient so to do, it may, by general or special order, prohibit strikes in any essential service specified in the Order".
Further upon the issue of such an order no person employed in any essential service to which the order relates shall go or remain on strike; and any strike declared or commenced, whether before or after the issue of the order, by persons employed in any such service, shall be illegal.
Section 4 provides that any person who commences a strike which is illegal under the Ordinance or goes or remains on or otherwise takes part in, any such strike shall be punished with imprisonment.
Section 5 provides that any person who instigates, or incites other persons to take part in, or otherwise acts in furtherance of, a strike which is illegal under the Ordinance shall be punishable with imprisonment.
The constitutionality of these sections is attacked on the ground that they violate the fundamental rights guaranteed by cls.
(a) and (b) of article 19 (1).
Under cl.
(1) (a) all citizens have the fundamental right to freedom of speech and expression and under cl.
(1) (b) to assemble peaceably and without arms.
Reasonable restrictions on these fundamental rights can be placed under the conditions provided in cls.
(2) and (3) of article 19.
We are of opinion that there is no force in the contentiton that these provisions of the Ordinance violate the fundamental rights enshrined in sub cls.
(a) and (b) of article 19(1).
A perusal of article 19(1) shows that there is no fundamental right to strike, and all that the Ordinance provides is with respect to any illegal strike as provided in the Ordinance.
This aspect has been elaborately discussed in the Bank Employees ' case(1) and it has been held that there is no fundamental right to strike (1) ; 407 (see All India Bank Employees ' Association V. National Industrial Tribunal(1)).
There is no provision in the Ordinance which in any way restricts freedom of speech and expression, nor is there any provision therein which restricts any one from assembling peaceably and without arms.
The Ordinance thus has nothing to do with restricting the fundamental rights enshrined in sub cls.
(a) and (b) of article 19(1), and there is therefore no necessity of even considering whether the provisions of the Ordinance can be justified under cls.
(2) and (3) of article 19.
It is not disputed that Parliament had the competence to make a law in the terms of the Ordinance and therefore the President had also the power to promulgate such an Ordinance.
The competence of the legislature therefore being not in dispute we fail to see how the Ordinance can violate the fundamental rights guaranteed under sub cls (a) and (b) of article 19(1) for there is no provision in it which in any way restricts those fundamental rights.
Learned counsel for the petitioner in this connection relies on two cases of this Court to which reference has already been made.
Kameshwar Prasad 's case (2) related to R. 4 A of the Bihar Government Servants ' Conduct Rules, 1956, which provided that no government servant shall participate in any demonstration or resort to any form of strike in connection with any matter pertaining to his conditions of service.
This Court held in that case that R 4 A insofar as it prohibited any form of demonstration, be it however innocent or however incapable of causing a breach of public tranquility was violative of articles 19(1) (a) and 19(1) (b) of the Constitution.
This Court also held that insofar as that rule prohibited a strike it was good, since there was no fundamental right to resort to strike.
In O. K. Ghosh 's case(3) this Court was concerned with r. 4 A and r. 4 B of the Central Civil Services (Conduct) Rules, 1955, and following the decision in Kameshwar Prasad 's case(4), 4 A was struck down in part so far as it related to demonstrations and r. 4 B was also held to be invalid.
That case did not deal with the Ordinance at all and the charge in that case did not seem to have been in the same terms as the charge in the present case.
No argument appears to have been urged either in the High Court or before this Court about the validity of the Ordinance or about the validity of the impugned order in relation to the Ordinance or the illegal character of the strike.
In the circumstances that case is also of no assistance to the petitioner and there was nothing decided there which would in any way affect the validity of the provisions of the Ordinance.
We are therefore of opinion that the Ordinance is valid.
(1) ; , 292.(2) (2) [1962] Supp. 3 S.C.R. 369.
(3) [1963] Supp. 1 S.C.R. 789.
408 We have already set out the charge framed against the petitioner.
it will be seen that the charge is based entirely on the Ordinance and has no connection with rr.
4 A and 4 B which were considered in the O.K. Ghosh 's case(1).
The petitioner is charged with gross misconduct on the ground that on the midnight of July 11, 1960, he took part in a demonstration in furtherance of the strike of the employees of the Department in violation of the order of July 8, 1960.
It is not disputed that on July 8, 1960, the Central Government had issued an order under section 3 of the Ordinance prohibiting any strike in the Department.
The strike therefore that started on the midnight of July 11, 1960 was an illegal strike in view of section 3 (4)(b) of the Ordinance.
Section 5 of the Ordinance provides inter alia that any person who acts in furtherance of a strike which is illegal is punishable thereunder.
The charge against the petitioner was that he had acted in furtherance of the strike which was to commence on the midnight of July 11, 1960 and was therefore guilty of gross misconduct.
It is this charge of gross misconduct which has been found to be proved against the petitioner and which has led to the punishment inflicted on him.
This charge as already indicated has nothing to do with r. 4 A and r. 4 B and therefore the two cases on which the petitioner relies have no relevance in connection with this charge.
The punishment given to the petitioner cannot therefore be set aside on the ground that the charge was in violation of the fundamental rights guaranteed under sub cls.
(a) and (b) of article 19(1), which deal with freedom of speech and expression and the right to assemble peaceably and without arms.
The charge does not deal with these two matters at all.
On the other hand it deals with acting in furtherance of the illegal strike which started on the midnight of July 11, 1960, and the petitioner was charged with gross misconduct inasmuch as he acted in furtherance of the illegal strike on July 11, 1960 after the strike had been prohibited by the Central Government by order dated July 8, 1962.
Whether the "acting" in furtherance of the strike took the form of speeches or demonstrations would make no difference.
In either case it can be said that there is a violation of article 19 (1) (a).
The only question that remains for consideration therefore is whether the petitioner 's contention that there was no evidence at all on which the authorities concerned could find the petitioner guilty of the charge is correct.
So far as that is concerned, the authorities had the following undisputed facts before them: (1) The petitioner was the Secretary of the local union of the employees of the Department; (1) [1963] Supp. 1 S.C.R. 789.
409 (2) On that day the petitioner 's duty finished at 8 p.m. and he should have normally gone home; but he stayed on in the dormitory till 11 30 p.m. which was just half an hour before the strike was to commence; (3) The demonstration was held in connection with the strike by the employees of the Department at 11 30 p.m. just half an hour before the strike was to commence; (4) The petitioner took part in that demonstration and was actually arrested amongst the demonstrators.
If on these undisputed facts the authorities came to the conclusion that the petitioner acted in furtherance of the strike which was to commence half an hour later and was thus guilty of gross misconduct it cannot in our opinion be said that there was no evidence on which the authorities concerned could find the charge framed against the petitioner proved.
The contention therefore that there was no evidence on which the authorities concerned could find the charge proved must fail.
We therefore dismiss the petition.
In the circumstances ,of this case we pass no order as to costs.
Petition dismissed.

summary/full:
The petitioner was serving as an officiating Teleprinter Supervisor at Jaipur when the employees of the Posts and Telegraphs Department went on strike from the midnight of July 11, 1960, throughout India and there was a similar strike at Jaipur.
The petitioner 's case was that he was on duty that day from 12 noon to 8 p.m. and after his duty was over, he did not go home but went to the dormitory where he fell asleep as he was tired.
On hearing some noise he woke up at 11 30 p.m. and wanted to go home but was arrested by the police under the Essential Services Maintenance Ordinance, No. 1 of 1960.
The criminal charge was however withdrawn.
On July 21, 1960, a chargesheet was served on the petitioner in the following terms: "That Shri Radhey Shyam Sharma I C/S Telegraphist, CTO Jaipur committed gross misconduct in that on the midnight of the 11th July, 1960, he took part in a demonstration in furtherance of the strike of the P. & T. Employees in violation of the orders dated 8 7 1960 issued by the Government of India under the 'Essential Services Maintenance Ordinance, 1960 (1 of 1960) ' prohibiting strikes in any Postal, telegraph or telephone service".
The enquiry officer found him guilty of the charge and ordered that his pay should be reduced in the time scale by three stage,% for a period of two years and on restoration the period of reduction was not to operate to postpone his future increments.
0n appeal, the Director General considered the whole matter on merits and rejected the appeal.
In this Court it was urged that the punishment imposed upon the petitioner was violative of his fundamental rights under articles 19(1)(a) and (b), reliance being placed on two cases of this court in Kameshwar Prasad vs State of Bihar and O. K. Ghosh vs E. X. Joseph; that sections 3, 4 and 5 of the Ordinance were ultra vires, as they contravened article 19(1.)(a) and (b) and that in any case there was no evidence on which it could ' be found that the charge against him had been proved.
Held: The provisions of the Ordinance in sections 3, 4 and 5 did not violate the fundamental rights enshrined in article 19(1)(a) and (b).
A perusal of article 19(1) shows that there is no fundamental right to strike, and all that the ordinance provided was with respect to any illegal strike as provided in the Ordinance.
There was no provision in the Ordinance which in any way restricted those fundamental rights.
It was not in dispute that Parliament had the competence to make a law in the terms of the Ordinance and therefore the President had also the power to promulgate, such an Ordinance.
404 The competence of the legislature therefore being not in dispute it cannot be held that the Ordinance violated the fundamental rights guaranteed under article 19(1)(a) and (b).
All India Bank Employees Association vs National Industrial Tribunal, ; , referred to.
The two cases relied on by the petitioner have no relevance in connection with the charge in the present case.
The punishment given to the petitioner cannot therefore be set aside on the ground that the charge was in violation of the fundamental rights guaranteed under article 19(1)(a) and (b).
Kameshwar Prasad vs State of Bihar, [1962] Supp. 3 S.C.R. 369 and O. K. Ghosh vs E. X. Joseph, [1963] Supp. 1 S.C.R. 789, held inapplicable.
If on the undisputed facts the authorities came to the con clusion that the petitioner acted in furtherance of the strike 'Which was to commence half an hour later and was thus guilty of gross misconduct, it could not be said that there was no evidence on which the authorities concerned could find the charge framed against the petititoner proved.


judgement:
il Appeals Nos.
399 403/1962.
Appeal from the judgment and order dated February 17, 1961 of the Andhra Pradesh High Court in Writ Petitions Nos. 400, 431 to 433 and 495 of 1958.
K.Srinivasamurthy and Naunit Lal, for the appellants (in all the appeals).
K.R. Chaudhuri and B. R. G. K. Achar, for the respon dents (in all the appeals).
March 20, 1964.
The Judgment of the Court was delivered by WANCHOO, J.
These are five connected appeals on certi ficates granted by the High Court of Andhra Pradesh.
They involve a common question of law and will be dealt with to gether.
The brief facts necessary to understand the question of law raised in these appeals are these.
The appellants manufacture medicines in which they have to use alcohol.
Before Parliament passed the Medicinal and Toilet Preparations (Excise Duties) Act, No. 16 of 1955, (hereinafter referred to as the Act), the appellants were working under licences granted under the Hyderabad Abkari Act, No. 1 of 1316 F.
Under that Act certain rules called the Medical Preparations and Spirituous Rules, 1345 F were framed and r. 36 thereof provided that "the expenses of the establishment for the supervision of the work shall be borne by the pharmaceutical laboratory (licensee) as per the decision of the Commissioner Excise".
It appears that for the manufacture of medicines, the appellants used to be supplied with alcohol.
Further the State Government posted on the bonded manufacturies of the appellants certain supervisory excise staff, and r. 36 was obviously framed to reimburse the Government for expenses incurred in that behalf.
After the Act came into force from April 1, 1957, the appellants who were manufacturing medicinal preparations were governed by it and the Rules framed thereunder and took licences under the Act.
The appellants then contended that as the Act had repealed all previous provisions with respect to medicinal preparations, they were no longer bound to pay the charges prescribed under r. 36 of 1345 F Rules.
Their contention was that this rule along with such provisions of the Hyderabad Abkari Act, which concerned medicinal prepara tions were repealed by the Act and the Rules framed there under.
The State Government could therefore no longer ask them to pay the costs of the establishment posted at their 378 bonded manufacturies for supervision*.
The appellants thereupon filed writ petitions in the High Court challenging the levy of these charges.
The petitions were opposed on behalf of the State and its contention was that even though the Act and the Rules framed thereunder had come into force from April 1, 1957, r. 36 of the 1345 F Rules continued and was not repealed by the Act and the Rules framed thereunder, and the State was entitled to the expenses of the supervisory staff and could realise it from the appellants.
The High Court held that r. 36 could not be said to have been repealed by the Act and the Rules framed thereunder and was still good law.
In this connection the High Court pointed out that the Hyderabad Abkari Act was not concerned only with medicinal preparations but was a general Act dealing with excise including alcohol, and that alcohol in the ultimate analysis was liquor; therefore the State Government which supplied alcohol to the appellants for the purpose of making medicinal and toilet preparations for which no duty was paid was entitled to see that the alcohol was not used for purposes other than that for which it was supplied to the appellants.
Accordingly the High Court held that r. 36 of the 1345 F Rules was designed to achieve this object, under the general law of excise contained in the Hyderabad Abkari Act, and was therefore good.
In consequence the writ petitions were dismissed.
The appellants then applied for certificates to appeal to his Court, which were granted; and that is how the matter has come up before us The only question that falls for consideration therefore is whether after the coming into force of the Act and the Rules,r. 36 of the 1345 F Rules can still be said to survive.
There is no doubt that the Hyderabad Abkari Act was a general Act and before the Constitution came into force, r. 36 of the 1345 F Rules would be good law.
Under the Constitution, however, medicinal and toilet preparations came under entry 84, List I of the Seventh Schedule to the Constitution, which provides for duties of excise on tobacco and other goods manufactured or produced in India, except (a) alcoholic liquors for human consumption; (b) opium, Indian hemp and other narcotic drugs and narcotics, but including medicinal and toilet preparations containing alcohol or any substance containing opium, Indian hemp and other narcotic drugs and narcotics.
No charge could thereafter be levied on the manufacture of medicinal preparations except by the Union in the shape of duties under item 84 of List I. * The State Government however insisted on the payment of the charges.
379 But under article 277 of the Constitution "any taxes, duties, cesses or fees, which, immediately before the commencement of this Constitution were being lawfully levied by the Government of any State may, notwithstanding that those taxes, duties, cesses or fees are mentioned in the Union List, continue to be levied and to be applied to the same purposes until provision to the contrary is made by Parliament by law".
In view of this provision, all duties and charges levied by the State before the coming into force of the Constitution on the manufacture of medicinal preparations could continue to be levied until law was made by Parliament otherwise.
It is not in dispute that the Act came into force from April 1, 1957 and is a law made otherwise by Parliament within the meaning of article 277, and therefore duties and other charges levied by the State in connection with medicinal preparations could no longer be levied by it.
Further the Act specifically provides in section 21 that "if, immediately before the commencement of this Act, there is in force in any State any law corresponding to this Act, that law is hereby repealed".
It is true that the Hyderabad Abkari Act was a general law which was concerned with liquor and intoxicating drugs generally; it thus applied to alcohol also (treating it as liquor) used for manufacturing medicinal preparations.
The effect of section 21 therefore is that so far as the Hyderabad Abkari Act applied to the use of alcohol, treating it to be liquor, in the manufacture of medicinal and toilet preparations, the Hyderabad Abkari Act must be deemed to have been repealed to that extent only by section 21.
Reliance is placed on behalf of the State on the proviso to section 21, which lays down that "all rules made under any law hereby repealed shall, so far as they are not inconsistent with this Act, have the same force and effect as if they had been respectively made under this Act and by the authority empowered hereby is in that behalf.
" It is therefore con tended that by virtue of the proviso to section 21, r. 36 of the 1345 F Rules must be deemed to continue.
We are of opinion that there is no force in this contention.
Rules were framed under the Act in 1956 and came into force along with the Act.
Rule 143 of these Rules provides that all rules made under any law corresponding to the Act in force in any State are hereby repealed except as respects things done or omitted to be done before such repeal.
Consequently all rules framed for the purpose of the manufacture of medicinal preparations came to an end in view of r. 143 of 1956 Rules.
Therefore r. 36 of 1345 F Rules, which appears in the Medicinal Preparations and Spirituous Rules must be held to be no longer good law so far as it applies to medicinal preparations.
That is one reason why we consider that r. 36 must be held to have been repealed after the coming into force of the Act and the Rules framed thereunder.
The proviso to section 21 on which reliance has been placed 380 cannot change the position ciew of the new Rules framed in 1956 with respect to medicinal preparations.
As soon as the new Rules came into force the old rules must fall and there is a specific provision in the new Rules (namely r. 143) which says that all rules made under any law corresponding to the Act are hereby repealed.
We may refer in this connection to the construction of r. 36 of the Rules of 1345F.
It provides that the expenses of the establishment for the super vision of the work shall be borne by the pharmaceutical laboratory.
The establishment which has to be paid for under r. 36 therefore is for the supervision of the work done by the pharmaceutical laboratories.
Now the work done by a pharmaceutical laboratory is to manufacture medicinal preparations.
Rule 36 therefore provides that expenses of the establishment for the supervision of the work of medicinal preparations manufactured by pharmaceutical laboratories have to be paid by the laboratory concerned.
The supervisory staff which has to be paid for under r. 36 therefore is meant for the supervision of the manufacture of medicinal preparations and it is for that purpose only that expenses have to be borne by the laboratory concerned.
The purpose of the rule therefore is clearly covered by the Act and the Rules framed thereunder and it cannot survive the Act and the Rules in view of section 21 of the Act and r. 143 of the 1956 Rules, and the proviso to section 21 cannot be availed of by the State.
This brings us to the alternative argument on behalf of the State, namely, that in any case the rule still remains good because it is meant to carry out the general purpose of the Hyderabad Abkari Act, namely to see that unauthorised sale of alcohol is not made for human consumption by the labora tory to which it is supplied for purposes of manufacture of medicinal preparations.
Therefore it is said that the rule is good inasmuch as it is concerned with the enforcement of the general law relating to alcohol and intoxicating drugs contained in the Hyderabad Abkari Act.
We are of opinion that there is no force in this contention either.
In the first place, as we have already indicated, the main object of the supervisory staff mentioned in r. 36 is to supervise the manufacture of medicinal preparations.
In that connection the supervisory staff will certainly see that the alcohol supplied is used for the purpose for which it is supplied and is not used in any other manner.
Rule 36 is only concerned with seeing that the manufacture of medicinal preparations is made properly and is done under the supervision of the establishment attached to each laboratory,, and it is only incidentally that in that connection the establishment is also to see that the alcohol supplied is not used otherwise than for the purpose of manufacture.
That however will not make the rule good under the Hyderabad Abkari Act, which deals with alcohol and intoxicating drugs generally.
381 What we have said above is borne out if we look at the 1956 Rules.
Rule 20 provides that in case of manufacture in bond (and we are concerned in the present appeals with such manufacture) alcohol on which duty has not been paid shall be used under excise supervision.
Rule 42 provides that "it shall be open to the Excise Commissioner to determine the size of the supervisory staff in consultation with the licencee.
" It is clear therefore that under the 1956 Rules supervisory staff is attached to bonded manufacturies which manufacture medicinal preparations.
This is also the purpose of r. 36.
Further r. 141 provides that "the licencee of a bonded manufactory or warehouse shall, where so required by the Excise Commissioner, provide the officer and the staff posted to the manufactory or bonded warehouse with suitable lodging conveniently situated to the factory or bonded warehouse premises at a rent not exceeding 10 per cent of the pay of each officer so accommodated.
If for any reason the licencee is not able to provide such accommodation he shall provide suitable accommodation to the satisfaction of the Excise Commissioner near the manufactory or bonded warehouse recovering only 10 per cent of the pay of the occupant.
" Then r. 45 provides that "tile officer in charge shall exercise such supervision as is required to ensure that alcohol issued for a certain preparation is added to the materials which go to make that preparation and that no portion of such alcohol is diverted to other purpose.
" It is clear therefore from these rules that the supervisory staff is attached to a bonded manufactory for the purpose of supervision to see that the manufacture is carried on properly and also to see that alcohol issued for the purpose of manufacture is not diverted to any other use.
We cannot therefore accept the argument that simply because the supervisory staff has got to see that alcohol supplied, assuming it to be liquor, is not misused, r. 36 is still good law because its purpose is to see that the general law relating to alcohol and intoxicating drugs contained in the Hyderabad Abkari Act is carried out.
As the 1956 Rules show it is the duty of the supervisory staff attached to a bonded manufactory to see that the manufacture is properly made and that alcohol supplied is not diverted to any use except that of the manufacture of the preparation.
This being the purpose of the 1956 Rules, the levy under r. 36 of 1345 F cannot be justified on the ground that under that rule the supervisory staff has to see that the general law relating to alcohol and intoxicating drugs is not violated.
There is no doubt that the field covered by r. 36 of the 1345 F Rules is completely covered by the Rules framed under the Act and therefore r. 36 can no longer be justified as good under the general law relating to alcohol and intoxicating drugs.
We may add that the Act or the 1956 Rules make no provision for any such charge as is provided in r. 36 of 1345 F Rules, the intention being that the duty under the Act will cover all expenses 382 for enforcing it.
The fact that members of the supervisory staff are the servants of the respondent makes no difference because they function under the Act and the rules framed thereunder and not under the Hyderabad Act.
We are therefore of opinion that reading section 21 of the Act and r. 143 of the Rules framed thereunder, r. 36 of 1345 F Rules must be held to have been repealed and that it is not saved by the proviso to section 21.
We therefore allow the appeals, set aside the orders of the High Court, and direct the issue of writs as prayed for.
The appellants will get their costs from the respondents One set of hearing costs.
Appeals allowed.

dataset_name: IN-Abs

summary/full:
The appellants are manufacturers of medicine in which they have to use alcohol.
According to r. 36 of the Medical Preparation and Spirituous Rules, 1345 F framed under the Hyderabad Abkari Act, 1316 F the appellant used to pay certain fees to the State Government for the supervision of the use of alcohol by the appellants.
After the coming into force of the Medical and.
Toilet Preparations (Excise Duties) Act, 1955 and the Rules framed thereunder the appellants contended that since R. 36 was repealed by this Act they had not to pay that fee.
On the refusal of the State Government to accept their contention the appellants filed writ petitions before the High Court challenging the power of the Government to levy the fee.
But the High Court held that R. 36 was not repealed and dismissed the writ petitions.
Thereupon the appellant filed the present appeals on certificates granted by the High Court.
Before this Court it was contended on behalf of the appel lant that section 21 of the 1955 Act in terms repealed any corresponding State law and therefore R. 36 stood repealed.
The respondent contended that the proviso to that section saved all previous rules which were not inconsistent with the Act and hence R. 36 should be deemed to be in force.
It was further contended by the respondent State that R. 36 remained in force because it was meant to carry out the general purpose of the Hyderabad Abkari Act which was a general Act relating to alcohol and intoxicating drugs.
Held:(i) By virtue of Entry 84 List I of the VII Schedule to the Constitution no charge could be levied on the manufacture of medicinal preparations except by the Union of India and since the 1955 Act is a law made otherwise by Parliament within the meaning of article 277 the duties and other charges which used to be levied by the State in connection with medicinal preparations could no longer be levied by it.
Further the effect of section 21 of the Act is that so far as the Hyderabad Act applied to the use of alcohol in the manufacture of medicinal and toilet preparations, the Hyderabad Act must be deemed to have been repealed.
(ii)By reasons R. 143 of the 1956 Rules r. 36 must be held to have been repealed after the coming into force of the 1955 Act and the rules framed thereunder.
The purpose of R. 36 is clearly covered by the 1955 Act and the rules framed thereunder and it cannot survive the said Act and Rules in view of section 21 of the Act and r. 143 and the proviso to section 21 cannot be availed of by the State.
377 (iii)The field covered by R. 36 is completely covered by the Rules framed under the Act and therefore R. 36 can no longer be justified as good under the general law relating to alcohol and in ,, toxicating drugs as contended by the State.


judgement:
minal Appeal No. 134 of 1962.
Appeal by special leave from the judgment and order dated July 17, 1962 of the Andhra Pradesh High Court in Criminal Revision Case No. 298 of 1961.
A. section R. Chari, G. D. Gupta, section Balakrishnan, R. K. Garg, section C. Agarwala, D. P. Singh and M. K. Ramamurthi, for the appellant.
section G. Patwardhan and B. R. G. K. Achar, for the respon dent.
March 23, 1964.
The Judgment of the Court was delivered by J.
RAGHUBAR DAYAL, J. The facts leading to this appeal, by special leave, are these: The Madras Public Service Commission, hereinafter referred to as the Service Commission, by its notification published 411 in the Fort St. George Gazette dated August 3, 1948, invited applications for appointment of Assistant Surgeons in the Madras Medical Service (Men 's Section), from persons who had rendered temporary service as Assistant Surgeons in that Service at any time between September 3, 1939 and December 31, 1947 and from persons who had rendered War Service and possessed the qualifications mentioned in paragraph 3 of the notification.
Paragraph 3 of the notification, inter alia, reads: "Applicants must satisfy the Commission (a) that they are registered practitioners within the meaning of the Madras Medical Registration Act, 1914; (b) that they possess the L.M.S. degree or the M.B., B.S., degree of a University in the Province or an equivalent qualification.
" The appellant, who was at the time serving as a Civil Assistant Surgeon in the Madras Medical Service on a tempo rary basis, applied for the permanent appointment to the posts notified by the Public Service Commission.
In this application 'he made the following representations, which have been found ;to be false, by the Courts below: (i) that his name was Kaza Krishnamurthy; (ii) that his place of birth was Bezwada, Krishna district; (iii) that his father was K. R. Rao of Bezwada; and (iv) that he held the degree of M.B.B.S., II Class, from the Andhra Medical College, Vizagapatam, Andhra University.
On these facts, the appellant was convicted of the offence under section 419 I.P.C. for having cheated the Madras Public Service Commission by personating as Kaza Krishnamurthy and misrepresenting that he had the necessary qualifications for the post advertised inasmuch as he held the degree of M.B.B.S., and that this deception of the Service Commission was likely to have caused damage to its reputation.
It may now be mentioned that the appellant was also tried for offences under section 420 and section 465 I.P.C. in connection with certain acts committed by him in June and October, 1944.
The trial Court acquitted him of the offence under section 465, but convicted him of the other offence.
He was, however, acquitted on appeal, by the Sessions Judge, of the offence under section 420 I.P.C.
The appellant 's conviction under section 419 I.P.C. was confirmed by the Sessions Judge and the revision against that 412 order was dismissed by the High Court.
it is against this order of the High Court that the appellant has preferred this appeal after obtaining special leave.
It has been contended for the appellant that on the facts, established in the case, no offence under section 419 I.P.C. is made out against him, as the appellant 's efficiency as a surgeon is not in dispute, he having secured good reports from his superiors during the period of his service and as therefore there could be no question of the Service Commission suffering damage in its reputation.
On the contrary, it is urged for the State that the offence of cheating is made out against the appellant as he deceived the Service Commission and that such deception was likely to damage its reputation as he deceived the Service Commission and obtained from it 'property ' viz., the admission card entitling him to sit at the Competitive Examination for the appointment of candidates for these posts, and as the appellant also deceived the Government of the State by his false representations, and dishonestly induced it to appoint him in service and pay him salary during the period of his service.
Section 415 I.P.C., defines 'cheating ' and reads: "Whoever, by deceiving any person, fraudulently ordishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat '.
Explanation A dishonest concealment of facts is a deception within the meaning of this section".
Cheating can be committed in either of the two ways des cribed in section 415 I.P.C. 'Deceiving a person ' is common in both, the ways of cheating.
A person deceived may be fraudulently or dishonestly induced to deliver any property or to consent to the retention of any property by any person.
The person deceived may also be intentionally induced to do or to omit to do anything which he would not have done if not deceived and which act of his caused or was likely to cause damage or harm in body, mind, reputation or property.
The Courts below, as already stated, found that the appel lant cheated the Service Commission by deceiving that he held the degree of M.B.B.S. and by intentionally inducing the: 413 Commission to recommend his appointment to the post of Civil Assistant Surgeon, 11 Class, and that this act of the Service Commission was likely to damage its reputation as the appellant did not really possess the degree of M.B.,B.S. Assuming, without deciding, that such a deception of the Service Commission and its recommendation could, in certain circumstances, cause damage to its reputation, we are of opinion that in the circumstances of this case there was no likelihood of the causing of such damage to its reputation.
There is nothing on the record to show that the Service Commission could have ordinarily detected the deception or that the appointment of the applicant to the post in the Medical Service was the appointment of a person who proved to be inefficient.
On the contrary, the evidence on the record shows that for about 10 years between his appointment and the institution of this case, he served efficiently and obtained good reports from the Departmental Superiors.
His incompetency for the post was due to his having not obtained the minimum academic qualifications prescribed for the candidates for these posts.
We are therefore of opinion that the appellant has not committed the offence of 'cheating ' as defined in the latter part of section 415 I.P.C., even though he had deceived the Service Commission by re presenting himself to be a duly qualified candidate, and thus induced it to select him for the post.
It was argued for the State that the Public Service Commission held a competitive examination and must have therefore issued an admission card to the appellant entitling him to sit at that competitive examination and that therefore the appellant having induced by deception the Service Commission to deliver to him the admission card which is 'property ', committed the offence of 'cheating ' as defined in the first part of section 415 I.P.C. There is no force in this contention for the simple reason that there is nothing on the record to indicate that an admission card was issued entitling the appellant to sit at the competitive examination.
In fact, no examination as such took place, and the contention for the respondent appears to have been made under a misapprehension arising out of the letter of the Secretary of the Service Commission to the Surgeon General with the Government of Madras stating that he was enclosing the list containing the names and other particulars of 45 candidates who were successful at the competitive examination held by the Commission for the direct recruitment of Civil Assistant Surgeons, Class II (Men) in the Madras Medical Service.
It is however clear from the record that the candidates were simply interviewed by the Commission.
There is nothing on the record to show that any written examination to which admission was by admission cards, took place.
The judgment of the Magistrate states: 414 "The accused was interviewed by the Service Commission as seen from Exhibit P 70, extract of Service Commission particulars".
The same statement is made in the judgment of the Sessions Judge who said: "The accused sent an application exhibit P 72. . showing that he passed M.B.,B.S. degree examination, and on receiving it and interviewing him, the Public Service Commission selected him as Civil Assistant Surgeon, Class 1".
The High Court states the same in its judgment.
It said: "In 1948 he sent an application to the Madras public Service Commission for selection as class 11 Civil Assistant Surgeon and was selected as such following an interview by the said body".
In these circumstances, we cannot hold merely on the basis of suggestions, that any competitive written examination was held and that any admission card was issued to the appellant entitling him to sit at the examination and, consequently, cannot hold that the offence of cheating by dishonestly inducing the Service Commission to deliver him property was committed by the appellant.
The only other question to determine now is whether the appellant deceived the Government of Madras and dishonestly induced it to deliver something in the form of salary to the appellant.
It is urged that the appointment to the post lay with the Government and not with the Service Commission and that 'the Government would not have appointed him to the post in the Medical Service if it had not believed that the appellant possessed the necessary qualifications which, in his case, would be a degree of M.B., B.S., and that such a belief was entertained by the Government on account of the deception practised by the appellant in misrepresenting in his application that he held such a degree.
On the other hand, it is contended for the appellant that the delivery of 'property ' is to be by the person deceived, in view of the language of section 415 I.P.C., and that the person deceived, if any, was the Service Commission and not the Government, the application containing the misrepresentation having been made to the Service Commission and not to the Government.
We accept the contention for the respondent.
The ap pointments to the Medical Services are made by Government.
The Service Commission simply selected the candidates and recommends their names to Government for appointment.
This is clear from letter Exhibit P. 47 from the Secretary to the Service Commission to the Surgeon General with the Government of Madras.
The letter refers to the enclosing 415 of a list containing the names and other particulars of the candidates who were successful at the examination, their names being arranged in order of merit.
It refers to the relaxing of a certain rule in view of the paucity of candidates and states that they may be appointed, if necessary, pending receipt of the certificate of physical fitness and a further communication from the commission.
This is also clear from the provisions of the Government of India Act, 1935.
Section 241 provided that appointments in connection with the affairs of a Province will be made by the Governor of the Province.
Sub section
(1) of section 266 makes it a duty of the Provincial Public Service Commission to conduct examinations for appointments to the Services of a Province.
Clause (a) of sub section
(3) provides that the Provincial Public Service Commission shall be consulted on all matters relating to methods of recruitment to civil services and for civil posts and cl.
(b) provides that it shall be consulted on the principles to be followed in making appointments to civil services and posts and on the suitability of candidates for such appointments.
The Public Service Commission is constituted in pursuance of the provisions of section 264.
It is thus a statutory body and independent of the Government.
This aspect of a Public Service Commission was emphasized in State of U.P. vs Manbodhan Lal Srivastava(1) when considering the corresponding provisions of article 320 of the Constitution.
This Court said: "Once, relevant regulations have been made, they are meant to be followed in letter and in spirit and it goes without saying that consultation with the Commission on all disciplinary matters affecting a public servant has been specifically provided for in order, first, to give an assurance to the Services that a wholly independent body, not directly concerned with the making of orders adversely affecting public servants, has considered the action proposed to be taken against a particular public servant, with an open mind; and, secondly, to afford the Government unbiassed advice and opinion on matters vitally affecting the morale of public services".
It is in view of these provisions that the Public Service Commission invites applications for appointment to the various posts under the Government and subsequently makes a selection out of the candidates for appointment to those posts.
The selection may be after holding a written examination Dr after interviewing candidates or after doing both.
Names oil the candidates selected are arranged in order of merit and forwarded to the Government.
The Government is expected, as a rule, (1) ; 543. 116 to make appointments to the posts from out of the list, in the same order.
It has, however, discretion not to appoint any part of the persons so selected and securing a place in the order of merit which would have ordinarily led to his appointment.
Any representation made in an application for appointments is really a representation made to the Government, the appointing authority, and not only to the Public Service Commission to which the application is presented and which has to deal with that application in the first instance.
up to the stage ,of selection.
The object of the applicant was to secure an appointment and not merely to deceive the Public Service Commission and sit at the examination or to appear at the interview.
The deception was practised for that purpose and therefore there seems to be no good reason for holding that the deception came to an end once the Service Commission was deceived and had taken action on it as a result of the deception.
A false representation in an application to the Service Commission continues and persists to be so till the application is considered by the final authority responsible for making the appointments and must therefore be deemed to be made to that final authority as well.
In the instant case, when the recommendation of the Service Commission was sent to the Government, the qualifications of the recommended candidates, including the fact that the appellant had passed the M.B.,B.S. examination were mentioned.
The Government therefore believed that the appellant possessed the degree of M.B.,B.S., that as the Service Commission had scrutinized the application in that regard and had satisfied itself that the appellant possessed that degree.
The consequence of that is that the Government were led to believe that fact, which thus became a false representation.
We are therefore of opinion that the appellant 's misre presentation to the Service Commission continued and persisted till the final stage of the Government passing an order of appointment and that therefore the Government itself was deceived by the misrepresentation he had made in his application presented to the Service Commission.
The fact that the Service Commission is an independent statutory authority has no relevant bearing on this question.
It is a statutory body as it is constituted under he provisions Of a statutes.
It is independent of the Government in the sense that in its selection of candidates or in its tendering advice to the Government it does not take any hint or instructions or due from the Government.
It brings to bear its own independent mind to judge the comparative merits of the candidates and their suitability to the posts they apply for.
Its function is to advise the Government on the suitability of the candidates.
It is therefore a statutory adviser to Government in the matter of appointment to the Services.
Deception of such an adviser is 417 deception of the Government which is expected to pay heed to its advice and act accordingly.
There have been cases in which servants or agents of an authority have been deceived while the loss has been suffered by the authority concerned.
In such cases, the person deceiving the servants or agents has been held to have deceived the authority concerned, though no direct question was raised about the deception being made not to the authority but to is servant.
The principle of the cases, to our mind, fully applies to the case of candidates deceiving the Public Service Commission and thereby deceiving the Government in believing that they satisfied the various conditions prescribed for candidates for those appointments.
We may refer to some such cases.
In the Crown vs Gunput(1) the accused who had produced a railway pass with an altered number before the ticket collector when traveling by a train, was held to have thereby dishonestly induced the railway company to do or omit to do what they otherwise would not have done or omitted by the production of the altered pass.
The deception of the ticket collector was considered to be deception of the railway company.
In P. E. Billinghurst vs H. P. Blackburn(2) certain bills were presented by a company for payment.
They were checked by Government officials who were deceived by certain repre sentations made by subordinate officials through whom the bills had passed, and consequently payments were made in satisfaction of the demands under the bills.
The persons concerned in causing the deception were convicted of cheating the Government.
In Legal Remembrancer vs Manmatha Bhusan Chatterjee and Legal Remembrancer vs Hridoy Narain(3) it was held that if the evidence showed that responsible officers of the East Indian Railway Company and its Asansol Office were deceived and induced either to allot wagons to a certain colliery which would not otherwise have been allotted or to make out wagon chalans for the colliery which would not otherwise have been made, it was sufficient to support the allegations in the charges that the railway company was, by reason of deceipt, induced to act in a certain way.
The deception of the responsible officers was thus taken to be the deception of the railway company, the possible damage to whose reputation was remote.
In Emperor vs Fazal Din(4) it was held that the deception practised was likely to cause damage or harm to the person on (1)1868 Punj.
Col. Case No. 6.
(2) (3)I.L.R. (4)1906 L/P(D)ISCI 14 418 whom it was practised or to the railway authorities whose agent he was in the matter of appointments.
In Queen Empress vs Appasaimi(1) the act of the accused in obtaining, by personation, a hall ticket from the Superintendent at a University Examination and in signing the name of another person on the examination papers was held to indicate an intention on his part to lead the University authorities to believe that the examination papers were answered by the other person.
This again is on the principle that the deception of the Superintendent who was working for the University was a deception of the University itself.
Similarly, in Ashwini Kumar Gupta vs Emperor(2) the accused personated another person at a University examination cheating the Registrar.
It was held that this not only damaged the reputation of the Registrar, but also that of the University.
Reference may also be made to the case reported as In re: Hampshire Land Company(3) in which a Society had lent money to a company on the borrowing of the directors of that company who were not competent to borrow, the resolution conferring on them the power of borrowing being invalid for certain reasons.
It was held that the Society had a right to assume, in a case like that, that all the essentials of internal management had been carried out by the borrowing company.
On the same principle it can be said that the Government of the State had a right to assume that the Service Commission had verified that the candidates selected by it for appointment by the Government possessed the necessary qualifications and in that view the scrutiny by the Service Commission can be said to be on behalf of the Government.
The Government appointed the appellant to a post in its Medical Service on being induced by deception that he was fully qualified for the appointment.
In consequence of the appointment, Government had to pay him.
the salaries which fell due.
It is clear therefore that the appellant, by deceiving the Government, dishonestly induced it to deliver property to him and thus committed the offence of cheating under section 415 I.P.C. as he pretended to be Kaza Krishnamurthy which he was not.
The offence really committed by him was 'cheating ' by personation, punishable under section 419 I.P.C.
The conviction of the appellant for this offence is therefore correct.
We accordingly dismiss his appeal and order that he will surrender to his bail and serve out the sentence.
Appeal dismissed.

summary/full:
The appellant applied for a post advertised by the Madras Public Service Commission, making certain representations in his application which were found to be false.
He was convicted under section 419 Indian Penal Code for having cheated the commission.
This conviction was confirmed by the Sessions Judge and the revision was dismissed by the High Court.
Held: (i) Cheating can be committed in either of the two ways described in section 415 Indian Penal Code. 'Deceiving a person ' is common in both the ways of cheating.
(ii) The appellant 's misrepresentation to the Service Com mission continued and persisted till the final stage of the Government itself was deceived by the misrepresentation made in the application presented to the Service Commission.
The Service Commission is a statutory adviser to the Government in the matter of appointment to the Service.
Deception of such an adviser is deception of the Government which is expected to pay heed to its advice and act accordingly.
State of U.P. vs Manbodhan Lal Srivastava ; , The Crown vs Gunput, 1868 Punj.
Case No. 6, P. E. Billinqhurst vs H. P. Blackburn, , Legal Remembrancer vs Manmatha Bhusan Chatterjee, & Legal Remem brancer vs Hridoy Narian I.L.R. , Emperor vs Fazal Din , Queen Empress vs Appasami, I.L.R. Mad. 151.
Ashwani Kumar Gupta vs Empreror.
I.L. R. and In re: Hampshire Land Company, referred to.


judgement:
Appeal No. 490 ,of 1962.
Appeal by special leave from the judgment and order dated October 20, 1959 of the Punjab High Court in Regular Second Appeal No. 1591 of 1959.
Kartar Singh Chawla and Harbans Singh, for the appellants.
I. M. Lal and M. R. K. Pillai, for the respondents.
March 24, 1964.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
This is a defendants ' appeal by special leave against the order of the High Court of Punjab dated October 20, 1959 dismissing summarily second appeal filed by the appellants.
The suit was filed by the respondents for possession of a plot, a house and a Kaur and half share in certain lands as preferential heirs of one Pohla after the death 431 of Pohla 's widow Punjab Kaur on February 7, 1952.
The plaintiffs are Mst.
Nikko, sister of Pohla and Jarnail Singh, son of Mst.
Har Kaur who was another sister of Pohla.
The first appellant Mara is a collateral of 4th degree of Pohla and the other two appellants are Mara 's sons.
The following genealogy gives the relationship of the parties: Sualtani : : : : : : Sohela Baghaila : : : : Mara defendant No.1 : : Pir Bux Jaimal Sunder : : died sonless : : and wifeless : : : : : Mohinder Singh Major : : : Singh Pohla Mst.
Har Kaur Mst.
Nikku defendant defendant (son) (daughter) alias Punjab No.2 No.3 : : Kaur (daughter) : : wife of Santa Shrimati Jarnail son Singh Jat, Punjab of Arjun resident of widow Plaintiff Ayali Kalan, No.2 No.2 Plaintiff No.2 The parties are Jhalli Jats of village Chomon, Tehsil and District Ludhiana.
The plaintiffs claimed that the property was non ancestral and according to the Riwaj applicable to the family, sisters excluded collaterals in respect of both ancestral and non ancestral properties.
It appears that after the death of Panjab Kaur, Mara got one of the fields mutated in his own name and thereafter took possession of the whole property.
He made gifts to his sons of some of the properties and that is why they were joined in the suit.
Mara and his elder son Mohinder Singh filed a joint written statement in which they raised many pleas the details whereof need not be given here.
They claimed that according to the custom applicable to the family, sister and sister 's sons were excluded from inheritance in respect of properties whether ancestral or nonancestral.
They however claimed that the property was ancestral and denied the genealogy.
The Subordinate Judge, Second Class, Ludhiana framed six issues of which issues No. 2, 3 and 4 alone are important in this appeal.
Those issues are: "2.
Whether the property is ancestral qua Pohla and Mara?" "3.
Whether the question of the nature of the property is material for the decision of tons case?" 432 "4.
Whether the plaintiffs are preferential heirs to the estate of Mst.
Panjabo widow of Pohla?" The parties led voluminous oral evidence in the case but the Subordinate Judge did not rely upon it.
We have not been referred to any portion of this evidence in this appeal.
The learned Subordinate Judge held that the suit lands were not ancestral and further that no evidence was produced to prove that the other properties were ancestral.
On the third issue he referred to question No. 52 from the Riwaj i am relating to the settlements of 1882 and 1909 1910 (Exts.
and D 2) in which it is stated that among the Jhalli Jats of Tehsil Ludhiana sisters or sisters ' sons never succeed.
He, however, held on the authority of Ahmad vs Mohammad and others(1) that since question refers only to ancestral property and that the nature of the property was thus material.
On the fourth issue he held on the strength of the answer to question No. 52 that sisters and their sons were excluded from ancestral property but as the answer was not applicable to non ancestral property the personal law would apply unless special custom was proved.
He therefore placed the burden on ,he defendants relying upon Harnam Singh vs Mst.
Gurdev Kaur, (2) MSt.
Sukhwant Kaur vs section Balwant Singh and others(3) and Mst.
Jeo vs Ujagar Singh.(4) As he had already rejected the oral evidence and there was no other proof that the property was ancestral, he decreed the suit.
On appeal the District Judge, Ludhiana remitted three issues to the trial Judge and they were as follows: "Issue No. 4: Whether there is any custom by which the parties are governed according to which the plaintiffs are entitled to succeed to the ancestral as well as non ancestral left by the Pohla in preference to Mara defendant?" "Issue No. 4A: Whether under the custom by which parties are governed the defendant Mara is a preferential heir to the plaintiffs in respect of the ancestral as well as non ancestral property of Pohla deceased?" (1) A.I.R. 1936 Lah.
(2) (3) A.I.R. 1951 Simla 242.
(4) 433 "Issue No. 4B: If the custom set out by the parties is not proved, whether the plaintiffs are preferential heirs to Mara defendant under personal law applicable to the parties?" On these issues the report of the Subordinate Judge, First Class, Ludhiana was against the contention of the defendants.
The learned District Judge held, in agreement with the Subordinate Judge, that the lands in suit were not ancestral and he held also that there was no evidence to show that among the Jhalli Jats of Ludhiana collaterals excluded sisters and sisters ' sons in respect of non ancestral property.
He referred to Exts.
9, 10, 12 and 13 which were judgments in other cases as evidencing the contrary.
He accordingly dismissed the appeal.
The Second appeal filed thereafter was dismissed summarily by the High Court.
The first question to decide is whether these lands are ancestral or non ancestral.
The concurrent finding of the two courts below is that none of the properties in dispute is ancestral.
The High Court prima facie saw no reason to differ from any of the conclusions of the courts below.
It is contended on the strength of a Kafiat of Thulla Malla prepared at the settlement of 1882 that this land came into possession of one Sekhu who was admittedly a common ancestor in the family and the property, which is now in dispute, must be regarded as ancestral.
It is contended that the finding is vitiated because the two courts below did not read this Kafiat alongwith the extracts from the Records of rights of the years 1882 and 1909 1910 in which the names of Jaimal and Sunder, sons of Baghela, and of Pir Bux son of Sohila are shown as persons in enjoyment of half shares in these lands.
It is argued that the lands in suit are thus proved to be ancestral as they belonged to Sekhu the common ancestor and the Riwaj i am as disclosed in question No. 52 applies to the case.
It appears, however, from the Kafiat as well as the Record of Rights that these lands were once abandoned and when people came back Sekhu got possession of some lands but in addition to these Sekhu 's descendants had acquired the share of one Dalpat in the Thulla and subsequently the entire estate of another holder, namely, Maidas was purchased by Jaimal, Sunder and Sohila.
This shows that the lands in dispute are not entirely ancestral but are made up of lands which may be described as ancestral and non ancestral.
Now, it has been ruled in the Punjab consistently that where lands are so mixed up that the ancestral and nonancestral, portions cannot be separated they must be regarded 434 as non ancestral, unless it is shown which are ancestral and which are not.
This was laid down by the Privy Council in Avtar Singh vs Thakar Singh(1).
It was held by Mr. Justice Kapur (as he then was) in Indar Singh vs Gulzara Singh and others(2) basing himself upon Saif ul Rahman vs Mohammand Ali Khan(3) and Jagtar Singh vs Raghbir Singh(4) that land ceases to be ancestral if it comes into the hands of an owner otherwise than by descent.
Once these conclusions are reached, it is quite obvious that the decision of the District Judge not to apply the answer to question No. 52 to non ancestral land was right.
It may be mentioned that the answers to questions refer to ancestral property only and this is now firmly established.
In fact, it was not denied at the hearing.
It is, however, contended that there are decisions to show that the right of the collaterals was recognised in respect of even non ancestral land to the exclusion of sisters and their sons.
No ruling from the Law Reports has been brought to our notice.
Some cases from the Ambala and Amritsar Dis tricts are cited but those obviously cannot be any authority, because, as is well known, custom in the Punjab changes from district to district, tehsil to tehsil and pargana to pargana.
It has been ruled in this Court that paragraph 24 of Rattingan 's Digest which excludes sisters from inheritance from non ancestral property is too widely stated.
(See Ujagar Singh vs Mst.
Jeo(5) and (Waryam Singh and Others vs Smt.
Sukhi and another) (Civil Appeal No. 452 of 1961 decided on April 23, 1963).
The learned District Judge cited some instances in which the sisters and sisters ' sons were allowed to succeed in preference to collaterals.
One of the documents filed by the defendants in the suit (Ext.
D 6) also supports the contention of the respondents.
In this view of the matter it cannot be said that the application of the personal law to the family by the courts below was erroneous.
It is contended lastly that the rulings only show that collaterals of 5th degree are excluded and there is no case showing that a collateral of 4th degree was excluded.
If personal law applies, as it does, a collateral of the 4th degree is also excluded.
In our judgment this appeal must fail and is accordingly dismissed with costs.
Appeal dismissed.
(1) 35 I.A. 206.
(2)A.I.R. (3) I.L.R (4) I.L.R. (5) (1959 Supp. 2 S.C.R. 781.

summary/full:
Claiming inheritance to the properties of one P a Jhalli Jat of Ludhiana Tehsil, the respondents, who were P 's sister and sister 's son filed a suit against the appellants P 's collaterals.
The Subordinate Judge decreed the suit and an appeal to the District Judge was dismissed.
They held that the lands in suit were not ancestral and that there was no evidence to show that among the Jhalli Jats of Ludhiana collaterals excluded sisters and sister 's son in respect of non ancestral property.
An appeal to the High Court was also dismissed.
Held: (i) Where lands are so mixed up that the ancestral and non ancestral portions cannot be separated they must be regarded as non ancestral unless it is shown which are ancestral and which are not.
Avtar Singh vs Thakar Singh, 35 I.A. 206, applied.
Land ceases to be ancestral if it comes into the hands of any owner otherwise than by descent.
Inder Singh vs Gulzara Singh, A.I.R, 1951 Punj.
345, Saif ulRahman vs Mohammad Ali Khan, I.L.R. and Jagtar Singh vs Raghbir Singh, I.L.R. , referred to.
(ii) The application of the personal law to the family by the courts below was correct and paragraph 24 of Rattingan 's Digest which excludes sisters from inheritance from non ancestral property is too widely stated.
Ujagar Singh vs Mst.
Jeo, [1959] Supp. 2 S.C.R. 781 and Waryam Singh vs Smt.
Sukhi, CA No. 452/61 decided on 23 4 1963 (non reportable) referred to.