judgement:
Appeal No. 958 of 1966.
Appeal by special leave from the Award dated September 16, 1965 of the Labour Court, Allahabad in Adjudication Case No. 78 of 1965.
G.R. Gokhale, O.P. Malhotra and 1.
B. Dadachanji, for the appellant.
R. Vasudev Pillai and Subodh Markandeya, for respondents Nos.
2(a) to 2(k).
541 The Judgment of the Court was delivered by Vaidialingam, J.
In this appeal, by special leave, the question, that arises for consideration, is as to whether the award of the Labour Court, Allahabad, dated September 16, 1965, directing the reinstatement of six workmen, referred to in the order of reference, is justified.
The facts leading up to the award may be referred to.
There was a strike, in the establishment of the appellant company, from March 18, 1964.
There was a meeting, of the District Industrial Relations Advisory Committee, on March 29, 1964, presided over by the District Magistrate of the area.
Representatives of the management and the workmen, attended the said meeting.
The proceedings of the meeting show that the Advisory Committee, decided to appeal to the appellant not to take any action, against the workers, on the gro.und that they had on strike, from March 18 1964.
There was an appeal, to the District Magistrate, Allahabad, to release, as a gesture of goodwill, the arrested employees of the company, who were not involved in violence.
The Union, representing the workers of the appellant, in turn, decided to call off the strike and directed the workmen to resume work with effect from the morning of March 30, 1964.
There is no controversy that the strike was called off, and certain workers, who had been arrested in connection with the strike, were also released from ia 'il, on March 29, 1964 itself.
This strike will be referred to, as the first strike, in the course of this judgment.
On March 20, 1964, the respondent Union had given to the appellant, another notice, stating that the workmen of the appellant company would be going on a token strike, for one day, after fourteen days of the receipt of the notice, in sympathy with the workers of the Swadeshi Cotton Mills, Nalni.
The exact date, on which the strike was to take place, was not given in the notice, as required under sub section
(4) of section 6S of the U.P. (hereinafter referred to as the Act).
On April 9, 1964, the respondent Union again intimated to the management about the workmen 's intention to go on strike on April 10, 1964, and offered to work on a Sunday, so that there would be no loss of production; but the management intimated the Union that the factory would work on April 10, 1964.
A token strike actually took place, on April 10, 1964.
This strike will be termed as the second strike, in these proceedings.
In respect of the first strike, the Management had, on March 28, 1964, charge sheeted, for going on an illegal strike, some of the workmen, including the workmen, whose dismissal had been set aside by the present award.
A joint reply was sent, by the concerned workmen, on April 9, 1964, to the management, drawing their attention to the decision of the District Industrial Rela 545 tions Advisory Committee, dated March 29, 1964, and the settlement, arrived at, therein, between the management and the Union.
The workmen also requested the management, not 'to disobey the decision of the Committee.
The appellant sent a communication, on April 10, 1964, to the workmen, stating that they had not made any commitment, at the meeting on March 29, 1964, that the management would not proceed with the taking of disciplinarY action, against an employee, who committed a mis conduct, according to the Standing.
Orders of the Company.
The work men were again directed to furnish, within 24 hours, their reply, if any, to the charge sheet, dated March 28, 1964.
On May 8, 1964, the Acting Works Manager, of the appellant company, passed orders, warning the concerned workmen, for having mis conducted themselves, as s 'tated in the chargesheet, dated March 28, 1964.
It is further stated, in this order, that, after hearing the explanation, furnished by the workmen, the management holds the workmen guilty of mis conduct, for which they could have been dismissed; but the management has taken a lenient view and, hoping that the mis conduct will not be repeated, administers an earnest warning.
In respect of the second strike, which took place on April 10,1964, the management charge sheeted, on April 16, 1964, thirteen wo.rkmen, for going on illegal strike which is a mis conduct, under sub cl.
(2) of el. 21, of the Certified Standing Orders of the company, and as the strike was in violation of sub section
(4) of section 6 S of the Act.
There was a further charge that the workmen, concerned, had intimidated and prevented other willing workers, from going to work.
The workmen were directed to offer their explanation, as to why disciplinary action need not be taken for their conduct.
On April 17, 1964, the thirteen workmen, jointly sent a reply saying that the strike, on April 10, 1964, was legal, and due notice had been given, under the provisions of the Act.
They also denied having intimidated, or restrained, any willing worker from going to work.
They further stated that they had not committed any mis conduct.
The management proceeded to conduct an inquiry, against the thirteen workmen, and Sri K. 'D. Gupta, an officer of the company, was entrusted with the conduct of the said inquirY. Shri Gupta accordingly conducted an enquirY on April 20, 1964, and sent his report to the Acting Works Manager, .on
April 24, 1964.
After referring to the conduct of the inquiry proceedings, Shri Gupta has stated that the thirteen workmen are ' guilty of participation in an illegal strike, on April 10, 1964, and, as participation in an illegal strike, is a mis conduct under el.
21 (2 ) of the Certfied Standing Orders of the Company, the workmen, concerned, are guilty.
of mis conduct, but, regarding the 546 charge of intimidation and incitement, the inquiry officer found that the said charge was not established.
On May 22, 1964, the Acting Works Manager of the appellant accepted the report of Shri Gupta and passed orders, administering a warning, to seven, out of the thirteen, workmen, but, regarding the remaining six workmen, the Works Manager, after taking into account the warning that had been administered to them, on May 8, 1964, for go.ing on an illegal strike (referring to the first strike), passed orders dismissing them from service.
The Union raised a dispute, regarding the dismissal of the six workmen and, accordingly, the said dispute was referred to the Labour Court, Allahabad, for adjudication.
The case of the workmen was that the strike, on April 10, 1964, was legal, and that the domestic inquiry, conducted by Shri Gupta, was neither bona fide, not fair.
They also contended that in view of the settlement, arrived at on March 29, 1964, in respect of the first strike, the management had no right to take any action, by way of warning the workmen, as it purported to do, on May 8, 1964.
Taking the said warning into account, for the purpose of imposing the punishment of dismissal, amounted to a vindictive conduct, on the part of the management and, therefore, the order of dismissal was illegal.
The management, on the other hand, contended that the strike, that took place on April 10, 1964, was illegal, as it was not in accordance with the provisions of the Act and participation, in such illegal strike, was a mis conduct, under el.
21 (2) of the Standing Orders of the Company and, such mis conduct could be punished by dismissal, under cl. 22.
According to the management, the inquiry proceedings, conducted by Shri Gupta, were quite fair, and bona fide, and the workmen were given full opportunity to participate in the inquiry proceedings.
They also pleaded that the management was entitled, to impose punishment for mis conduct, by taking into account the previous conduct of the worlcmen, concerned; and, in this case, the warning, recorded against them on May 8, 1964, was legitimately and properly taken into account, inasmuch as the management had not agreed to withdraw the proceedings, against the workmen.
The Labour Court has upheld the plea of the management, that the second strike, on April 10, 1964, being contrary to sub section (4) of section 6 S, was illegal under section 6 T of the Act; but it has further held that, notwithstanding the infirmity in the notice, issued by the workmen regarding the second strike, all the managements in the area, including the appellant, were fully aware of the fact of the intended token strike on April 10, 1964.
The Labour Court has further held that the inquiry proceedings, conducted by Shri Gupta, were bona fide and fair, and they suffered from No. infirmity, 547 whatsoever.
The Labour Court further holds that, though normally imposing of a punishment, for mis conduct, under the Standing Orders, is a managerial function, in this case, the appellant was not justified in taking into account the warning, recorded on May 8, 1964, in respect of the first strike.
It is the further view, of the Labour Court, that the continuance of disciplinary proceedings, and recording of warnings, on May 8, 1964, by the appellant, against the six concerned workmen, in respect of the first strike, was with a view to create a ground for punishment and dismissal, in the subsequent proceedings, relating to the second strike, and, as such, the action of the management was not bona fide.
The Labour Court, in this connection, refers to the proceedings of the District Industrial Relations Advisory Committee, that took place on March 29, 1964, in the presence of the representatives of the appellant, and the Union, and the Labour Court is of the view that a settlement had been arrived at, by which the management has agreed, not to take any disciplinary action, against the workers, in connection with the first strike: Ultimately, the Labour Court holds that the punishment of dismissal, inflicted on the six workmen, by the appellant, on May 22, 1964, is unconscionable and unjustified, and not recorded in a bona fide manner.
In consequence, the order of dismissal, passed against the six concerned workmen, named in the annexure to the order of reference, was set aside and the workmen were directed to be reinstated, with 50% back wages.
We have fairly elaborately referred to the various circumstances, leading to the passing of the order of dismissal, bY the management, in order to appreciate the contentions, urged on behalf of the management, that the Labour Court had committed a serious illegality, in interfering with an order, passed by the management, for mis conduct, as provided under the standing orders of the company.
Mr. H.R. Gokhale, learned counsel, for the appellant, raised two contentions before us:.(1)that 'the finding of the Labour Court, that at the meeting of the District Industrial Relations Committee, held on March 29, 1964, the appellant agreed not to take disciplinary action, against its ' workmen, in respect of the first strike, is erroneous; and (ii) that having held that the second strike was illegal as being contrary to sub section
(4) of section 6 S of the Act, the Labour Court has committed an error in interfering with the act of the management, when it imposed a punishment, for mis conduct, under the standing orders of the company.
Mr. R. Vasudeva Pillai, learned counsel for the Union, has supported, in full, the award of the Labour Court.
We are not impressed with either of the contentions, of the learned counsel for the appellant.
We have already referred to LI3Sup.
CI/68 4 548 the proceedings, of the District Industrial Relations Committee, March 29, 1964.
No doubt, a day prior to that, the appellant had issued notices to the workmen, asking them to show cause as to why disciplinary action should not be taken against them, for going on strike from March 18, 1964.
There was a joint reply given by the workmen, on April 9, 1964, to the effect that, at the meeting held on March 29, 1964, the managem.ent had agreed, not to take any disciplinary action, against the workmen, and that, it was on that 'basis that the strike itself was called off, and the workmen, arrested, were also released by the Government.
There was no doubt an attempt, by the management, in their reply of April 10, 1964, to make it appear that they had not committed themselves, at the meeting of March 29, 1964, as mentioned by the workmen.
But it is rather surprising that, when the President of the Union, WWI, gave evidence to the effect that there was a settlement, on March 29, 1964, whereby the management had agreed not to take any disciplinary action, against the workmen, there was absolutely no cross examination, by the appellant, of that witness.
There is no dispute that Mr. Wright represented the management, at the said meeting, and no suggestion even has been made to WWI that the evidence, given by him, is not correct.
No doubt, the appellant, in their letter of April 10, 1964, had taken the stand that the company had not committed itself, not to take any action against the workmen, in respect.
of the first strike.
The inquiry report of Shri Gupta, in respect of the second strike, was already in the hands of the management, on April 24, 1964.
It is really after the receipt 'of this report, that the Acting Works Manager of the appellant company recorded warnings, as against the concerned workmen, on May 8, 1964,I in res 'peet of the first strike.
This warning has been taken into account, by the Works Manager, when he passed the order of dismissal, in respect of the Second strike, on May 23, 1964.
Having due regard to these circumstances, the finding of the Labour Court, that the continuance of the disciplinary proceedings, and recording of punishments of warnings, as against the six concerned workmen, on May 8, 1964, in respect of the fixst strike, by the management was to create a ground for punishment and dismissal, in respect of the second strike, is perfectly justified.
The further finding of the Labour Court, that 'the action of the management, in recording warnings in respect of the first strike, is not only not bona fide, but also against the settlement, 'arrived at, on March 29, 1964, is.
also correct.
The first contention, on behalf of the management, therefore fails.
There is the finding of the Labour Court, that the second strike, on April 10, 1964 is illegal.
Going on illegal strike, is certainly 'mis conduct ' under sub el.
(2) of el. 21, of the Standing Orders of the company.
Under el.
22 of the Standing Orders, the 549 punishment for mis conduct is dismissal, or, in the alternative, suspension, for a period not exceeding four days.
If the management had, without any regard to what happened, in respect of the first strike, imposed punishment under cl. 22, in respect of an illegal strike, which is 'mis conduct ' under cl. 21 (2)of the Standing Orders, after a fair inquiry, the punishment, meted out being a managerial function, would not be normally interfered with.
But in this case, even the order of dismissal clearly shows that the management has taken into account the previous conduct of the workmen, in having gone on the first strike, and the punishment of warning, administered on May 8, 1964.
It is because of this past conduct, it is further stated in the order, that the six workmen were being dismissed from service.
The finding of the Labour Court is that the management was not entitled to take into account the warning, given on May 8, 1964, in respect of the first strike, in view of the settlement, on March 29, 1964.
In view of the fact that the warning has been taken into account, by the management, which it is not entitled to, the punishment of dismissal has been rightly considered, by the Labour Court, to be not bona fide, and vindictive.
In fact, the Labour Court is also of the view that the punishment is unconscionable, and unjustified.
It is on these grounds, that the Labour Court has interfered with the order of dismissal, passed by the management.
The second co.ntention, of learned counsel for the appellant, also fails, as we are in agreement with the reasons, given by the Labour Court, 'on this aspect of the matter.
The result is that this appeal fails, and is dismissed.
There will be no order as to costs.
G.C. Appeal dismissed.

summary/full:
There was a strike in the establishment of the appellant company betseen 18th and 30th March, 1964, and again a token strike on 10th April, 1964.
For the misconduct of going on the first strike some of the workmen were charged and given a warning.
The second strike was held to be illegal by an enquiry officer and six of the workmen who had been given a warning in respect of the first strike were dismissed for taking part in the second strike also.
The Labour Court held that in the compromise that had ended the first strike the company had given the undertaking that it would not take any action by way of punishment against the workmen, and therefore the warning in respect of the first strike which was given only after the enquiry report relating to the second strike had been already received, was not only not bona fide but illegal.
Because this warning was taken into account against the six workmen who were dismissed, the Labour Court set aside the order of dismissal, although holding that the second strike was ille.gal because of want of notice under subs.
4 of section 6 S of the U.P.
The company appealed to this Court.
HELD: (i) The Labour Court rightly held on the facts that the warning given to the workmen in respect of the.
first strike was not only not bona fide but also.
against the terms of the settlement by which the first strike was ended.
[548 G] (ii) The second strike was, as held by the Labour Court, illegal and therefore 'misconduct ' under sub cl.
(2) of cl. 21 of the Standing Orders of the company.
Any punishment imposed under el.
22 of the said Orders in respect of an illegal strike after a fair enquiry, being a managerial function would not normally be interfered with.
But in the present case the management was not entitled to take into.
account the warning given in respect of the first strike in view of the settlement it had entered into with the workers to end that strike.
The Labour Court was therefore again right in holding the punishment of dismissal of the six respondents as vindictive and unjustified.
[548 H 549E]


judgement:
l Appeal No. 1041 of 1965.
Appeal from the judgment and decree dated August 9, 1962 of the Bombav High Court, Nagpur Bench, in Letters Patent Appeal No. 12 of 1961.
section V. Natu and A. G. Ratnaparkhi, for the appellant.
S.N. Kherdekar and M.R.K. Pillai, for the respondent.
The Judgment of the Court was delivered by Sikri, J.
This appeal by certificate granted under article 133 (1)(a) and (b) of the Constitution is directed against the judgment of the High Court of Judicature at Bombay, Nagpur Bench, in a Letters Patent appeal allowing the appeal and restoring the decree made in favour of the plaintiff Ganpatlal respondent before us and hereinafter called the respondent by the Trial Court as confirmed by the District Court.
The facts relevant for the determination of the points raised before us are as follows: The respondent, Ganpatlal, was the owner of Field Survey No. 56, measuring 25 acres 4 gunthas, in Yeotmal District.
It appears that the respondent used to lease the land to the defendant Dewaji appellant before us and hereillafter called the appellant on yearly lease.
For the year 1950 51 he gave the land to the appellant on the condition that at the end of the year the lease will stand determined and the appellant will hand over possession.
On May 7, 1951, the respondent served a notice on the appellant requiting him to vacate the land in suit.
The appellant however, continued to remain in possession.
Thereupon the respondent filed a suit on September 17, 1951.
praying for possession, damages and mesne profits, On November 15, 1951, the Berar Regulation of Agricultural 575 Leases Act, 1951 (Madhya Pradesh No. XXIV of 1951) hereinafter called the 1951 Act came into force, section 16 of which provides as follows: "Except as otherwise provid.ed in this Act, no Civil Court shall entertain any suit instituted, or application made, to obtain a decision or order on any matter which a Revenue Officer is by or under this Act, empowered to determine, decide or dispose of.
" One of the pleas which the appellant took was that he had been recorded as a 'protected tenant ' under the 1951 Act and that the Civil Courts had no jurisdiction to eject him in view of 8 of that Act.
The Trial Court held that the appellant was not a protected tenant under section 3(3) of the 1951 Act and the Civil Court had , jurisdiction.
The appellant then appealed to the District Judge and the Additional District Judge held that the Civil Court had jurisdiction.
He observed that "there is nothing in this section (section 16 of the 1951 Act) to suggest that the powers of the Civil Court were in any way curtailed in regard to the question whether a particular person was a tenant or not under section 3 of the Act.
Moreover, there is nothing in that Act to show that it was intended to apply to suits which were pending at the date when this Act came into force.
" By the time the appeal was heard by the Additional District Judge, section 16 of the 1951 Act had been substituted by sections 16.
I6 A and 16 B by the Berar Regulation of Agricultural Leases (Amendment) Act, 1953 hereinafter called the i953 Act.
These.
sections run as follows: "16(1) Whenever any question arises whether any transaction between a landholder and a person claiming to be his lessee is a lease within the meaning of this Act, such question shall be decided by the Revenue Officer.
(2) In deciding the question referred to in subsection (1) the Revenue Officer shall, notwithstanding anything contained in section 92 of the , or in section 49 of the Indian .
or in any other law for the time being in force, have power to inquire into and determine the real nature of the transaction and shall be at liberty, notwithstanding anything contained in any law as aforesaid to admit evidence of any oral agreement or a statement or unregistered document with a view to such determination.
(3) Any decision of the Revenue Officer under this section shall be binding on the parties to the proceedings and persons claiming through them.
576 16 A (1 ) Whenever any question as is referred to in section 16 arises before a Civil Court in any suit or proceeding, the Court shall, unless such question has already been determined by a Revenue Officer, refer the question to the Revenue Officer for decision and shall stay the suit or proceeding so far as it relates to the decision of such question.
(2) The Civil Court shall accept the decision of the Revenue Officer on the question and decide the suit or proceeding before it accordingly.
16 B: Except as otherwise provided in this Act, no Civil Court shah entertain any suit instituted, or application made, to obtain a decision or order on any matter which a Revenue Officer is by or under this Act, empowered to determine, decide or dispose of.
" Before the Additional District Judge the appellant relied on these sections and asserted that the determination of the question whether a person is a tenant or not was, under the 1953 Act, a matter entirely within the jurisdiction of the Revenue Courts and the jurisdiction of the Civil Courts had been ousted.
The learned Additional District Judge repelled the argument and held that the 1953 Act did not affect pending proceedings.
The learned Additional District Judge thereupon dismissed the appeal.
The appellant then appealed to the High Court.
The appeal first came up for hearing before Vyas, J.
By an order dated August 21, 1957, he held that in view of the amendments made by the 1953 Act, "it is not for the Civil Court to ' decide but for the Revenue Officer to determine whether in the year 1951 52 also the defendant was paying to his landlord every week by way of rent one third share in the produce of the garden and was his lessee for that year also." He further observed that "if the answer to this question is in the affrmative, the defendant would be entitled to all the benefits of a protected tenancy, as observed by the learned Chief Justice in Paika vs Rajeshwar(1). ' ' In the result he set aside the judgment and decree passed by the learned Additional District Judge and directed "that the record and proceedings in this case be sent to the Revenue Officer that is, the SubDivisional Officer, Yeotmal, and the said Revenue Officer is directed to decide whether the defendant 's averment is right or otherwise, namely, that even after the expiry of the year 1950 51, that is, even after 31st March, 1951, the defendant used to pay to his landlord, the plaintiff, every week by way of rent one third share F in the produce of the garden.
The decision of the Revenue Officer (1) 577 shall be subject to the usual course of appeal and revision, and.
when the question which is referred to the Revenue Officer by this judgment is finally decided by the highest Revenue Authority, the finding shall be communicated to this Court.
Until such time that this Court receives a finding upon the question mentioned above from the highest Revenue Authority, this appeal shall stand stayed.
It shall be disposed of by this Court after the finding of the highest Revenue Authority is received by it." The Revenue Court then remitted the finding.
The Commissioner, which was the last Revenue Court, gave a finding confirming the one as given by the Sub Divisional Officer that the appellant was paying rent to the respondent for the year 1951 52.
The appeal was then heard by Badkas, J.
It was argued before him that Vyas, J., should not have referred the issue to the Revenue Officer for decision under section 16 of the 1951 Act, but Badkas, J., held that it would not be appropriate for him to sit in judgment over the decision given by Vyas, J., and that the reference made by Vyas, J., under section 16 of the 1951 Act had to be accepted.
Accepting the finding of ,the Revenue Courts, Badkas, J., held that the respondent was not entitled to eject the appellant.
He further held that it was not necessary to decide whether the 1951 Act was retrospective or not as the 1951 Act came into force during the.year in which the defendant held survey numbers in question as lessee.
He accordingly allowed the appeal.
Having obtained leave, the respondent appealed under the Letters Patent.
It was urged before the Letters Patent Bench on behalf of the appellant that the Bench could not deal with the question whether the 1953 Act applied to pending proceedings on the ground that this point had not been argued before the learned Single Judge.
The Bench found no substance in this contention as the point had been raised before the learned Single Judges.
The Bench further held that there was no bar to the question of applicability of the 1953 Act being allowed to be raised.
Dealing with the merits, the Bench held that "taking the scheme of the Act into account and the fact that there is no section in the Act which makes the Act applicable to pending proceedings, it is at once clear that it was not intended to affect pending proceedings.
Pending proceedings must continue unaffected by the provision of the Act and whatever quest.ions arose in those proceedings must be decided by the Civil Courts.
" The Bench then accepting the finding of the Civil Courts, held that there was no defence to the suit and the suit must succeed.
The Bench also repelled the argument that it was not open to R to consider the entire merits of the Second Appeal as the leave had 578 been given by Badkas, J., and not by Vyas, J.
The Bench observed that there was no substance in the contention since the judgment of Vyas, J., was never open to the appeal it being an interlocutory judgment.
The learned counsel for the appellant contends that sections 16, 16A and 16B, as substituted by the 1953 Act, had clearly ousted the jurisdiction of the Civil Courts and Vyas, J, was right in sending the case to Revenue Courts for decision on the question whether the appellant was a tenant in the year 1951 52 or not.
He stresses the word "whenever" appearing in section 16 and says that this is a wide word and no limitation can be placed on it.
In our view there is no substance in this contention.
The first point to be noticed in this connection is that the 1953 Act came into force after the Trial Court had decreed the suit and an appeal was pending before the District Judge.
It cannot be disputed that if the Legislature intends to oust the jurisdiction of Civil Courts, it must say so expressly or by necessary implication.
We cannot find any words in sections 16, 16A and 16B which can lead to the necessary inference that these provisions were intended to apply to appeals pending when the 1953 Act came into force.
It is true that the word "whenever" is wide but section 16A uses the words "suit or proceeding" and these words do not ordinarily indicate appellate proceedings.
Further, section 16B uses the word "entertain" and not the words "entertain or try any suit" as contained in section 15 (2) of the 1951 Act.
If the intention was to affect pending proceedings, the word "try" alongwith the word "entertain" would have been ' used in section 16B of the 1953 Act.
It seems to us that the intention was not to apply the 1953 Act to pending appeals.
If sections 16A and 16B do not bar the jurisdiction of the Civil Courts in this case the Letters Patent Bench was right in accepting the findings given by the Trial Court and the District Court in holding that the appellant was not a tenant for the year 1951 52.
The learned counsel then contends that it was not open to the Letters Patent Bench to decide .this question of the applicability of sections 16, 16A and 16B because Vyas, J., had decided to the contrary and had not given leave to appeal against his order.
It seems to us that the order of Vyas, J, was interlocutory and it was not necessary for the respondent to obtain separate leave to appeal against this order.
It was open to the Letters Patent Bench to decide all points decided by Vyas, J., in the interlocutory 'order dated August 21, 1957.
At any rate the same point was raised before Badkas, J. Further as held by this Court in Satyadhyan Ghosal vs Sm.
Deorajin Devi(1), "an interlocutory order which did not terminate the proceedings and which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken, could be challenged in an appeal from (1) ; 579 the final decree or order." Section 105(2), C.P.C., does not apply in this case, and therefore, the Letters Patent Bench was entitled to go into the validity of the order passed by Vyas, J. The learned counsel then urges that this was a new point and the Letters Patent Bench should not have allowed it to be taken.
But we agree with the Bench that the point had been raised before the learned Single Judges.
In view of this it is not necessary to decide whether a new point can be taken up in a Letters Patent appeal or not.
In the result the appeal fails and is dismissed with costs.
V.P.S. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The respondent leased his land to the appellant on yearly lease for the year 1950 51.
As the appellant did not vacate at the end of the year the respondent filed a suit for his eviction.
Pending the suit, the Bera Regulation of Agricultural Leases Act, 1951, came into force and the appellant contended that he continued to be a tenant for the year 1951 52, that he was a 'protected tenant ', and that the civil court had no jurisdiction to eject him.
The trial court rejected the contentions.
The appellant appealed and while the appeal was pending the Act was amended by the 1953 Act.
Sections 16A and 16B of the Act as amended provided, that whenever any question as to whether a transaction between a landholder and a person claiming to be his lessee was a lease, arose in any suit or proceeding, it should be referred to the revenue officer that the revenue officer 's decision shall be accepted by the civil court; and that no civil court shall entertain any suit to obtain a decision on a matter which the revenue officer was empowered to determine.
The appellant contended in the appellate court that the determination of the question whether he was the respondent 's tenant was a matter entirely within the jurisdiction of the revenue courts only.
The appellate court held that the 1953 Act did not affect pending proceedings, that the appellant was not the respondent 's tenant for the year 1951 52, and dismissed the appeal.
In second appeal, a single Judge of the High Court held that in view of the 1953 amendments, it was for the revenue courts to decide whether the appellant was the respondent 's lessee for the year 1951 52 and referred the matter to the revenue courts.
The revenue courts held that the appellant was paying rent to the respondent for the year 1951 52, and remitted the finding to the .High Court.
Another Single Judge of the High Court, before whom the matter came up for final disposal, accepted the finding and held that.
the respondent was not entitled to eject the appellant.
He also rejected the respondent"s contentions that the 1953 amendments were not applicable and that the matter should never have been referred to the revenue courts.
The respondent thereupon appealed under Letters Patent.
The Bench held that sections 16, 16A and 16B of the Act were not intended to affect pending proceedings, that the civil court could decide the question whether the appellant was the respondent 's tenant in 1951 52, and allowed the appeal accepting the findings of the trial court and the first appellate court that the appellant was not the respondent 's tenant for the year 1951 52.
In appeal to this Court.
HELD: (1) It was open to the Letters Patent Bench to decide all points decided by the single Judges even though no appeal was filed against the order referring the matter to the revenue courts, as that order 574 was only an interlocutory one to which section 105(2) C.P.C.; was not applicable.
[578H; 579A B.] Satyadhyan Ghosal vs Smt.
Deorajin Devi, [1960] 3 S.C.R. 590, (2) The intention of the Legislature was not to apply the 1953 Act to pending proceedings and therefore sections 16, 16A and 16B did not bar the jurisdiction of the civil.courts in the present case.
The 1953 Act came into force after the trial court decreed the suit and an appeal was pending in the first appellate Court.
The words 'suit or proceeding in section 16A do not ordinarily, indicate appllate proceedings and there is nothing in sections 16, 16A or 16B which can lead to the necessary inference that these provisions were intended to apply to appeals pending when the 1953 Act came into force.
Further, the words used in section 16B are 'entertain ' and not 'entertain and try. '.
If the intention was to affect pending proceedings the word 'try. ' would have been in the section along with the word 'entertain '.
[578 C El


judgement:
vil ,Appeal No. 2525 of 1966.
Appeal from the judgment and order dated October 30, 1963 of the Gujarat High Court in Special Civil Application No. 94 of 1962.
C.K. Daphtary, Attorney General and 1.
N. Shroff, for the appellant.
H.R. Gokhale, S.B. Vakil, Janendralal and B.R. Agarwala, for the respondent.
The Judgment of the Court was delivered by Hegde J.
The only question that falls for decision in this appeal is whether on the basis of the notice issued by the Bombay State Electricity Board on January 8, 1959 under section 7 of the (to be hereinafter referred to as the: Act) prior to its amendment in 1959, the appellant can compulsorily purchase from the respondent his concern 'The Bilimora Electric Power Supply Co. '.
In his application before the High Court under article 226 of the Constitution the respondent challenged the vires of section 7 of the Act.
But that contention remains to be examined.
The High Court has chosen to allow the petition.
solely on the ground that as the requirements of section 7 have not been complied with, the appellant cannot compel the respondent to sell the undertaking.
If we come to the conclusion that that conclusion is unsustainable then the matter will have to go back to the High Court for deciding the constitutionality of section 7.
The respendent was given a licenee on.
February 11, 1932, under the provisions of the Baroda Electricity Act Samvat 1983 for supplying electricity within the area mentioned.
in the licenee.
Clause 27 of that licenee provided that the option of purchase 582 given by section 9 of the Baroda Electricity Act shall be exercisable first on the expiration of thirty years computed from the commencement of the licence and thereafter on the expiration of every subsequent period of ten years during the subsistence of the licence.
The manner in which the undertaking should be valued is laid down in that Act.
On the merger of the former Baroda State with the Province of Bombay, the Act as well as the (Act 54 of 1948) were made applicable to the territories of the former State of Baroda, and the corresponding Baroda Acts were repealed with the saving clause that the licences issued under the repealed Act shall continue to remain in force as if issued under the Act, until the expiration of the period of those licences.
In exercise of the powers conferred by section 5 of the Electricity Supply Act, 1948 the Government of Bombay constituted the Bombay State Electricity Board on January 31, 1945.
On January 8, 1959 that Board issued to the respondent a notice under section 7 of the Act.
That notice is important for our present purpose.
Hence we shall quote the relevant portion thereof.
It runs thus: "In exercise of the powers conferred on the Bombay State Electricity Board by virtue of section 71 of the Electri city (Supply) Act, 1948 read with section 7 of the , you are hereby notified that the Bombay State Electricity Board has decided to exercise and shall exercise the option of purchasing your under taking on the expiry on 10 2 1962 of the licence granted to you .
The receipt of this notice may please be acknowledged.
" As a result of the Bombay Re organization Act, 1960, the present Gujarat State came into existence.
In exercise of the powers conferred by section 5 of the read with sub section 4 of section 68 of the Bombay Reorganization Act, 1960 the appellant Corporation was constituted by the Government of Gujarat by means of a notification dated May 1, 1960.
The Central Government by the notification No. EL 1I 1(22)/60 dated the 17th June, 1960 made in exercise of the powers conferred by cl.
(a) of sub section
(4) of section 68 of the Bombay Reorganization Act, 1960 directed that the appellant Corporation shall "with effect from 1st May 1960" take over from the Bombay State Electricity Board all its undertakings, assets, rights and liabilities in the area comprised in the State of Gujarat.
The said notification was amended in some respect by notification of the Government of India dated October 3, 1960 providing therein that the amendment thereby made in the notification dated June 17, 1960 shall be deemed always to have been made.
On the basis of the aforementioned notifications, the appellant is claiming the right to compulsorily purchase the undertaking.
583 The respondent is contesting the right of the appellant to compulsorily purchase his undertaking.
With a view to forestall the appellant from taking action against him, the respondent an application under article 226 of the Constitution in the High Court of Gujarat seeking directions to the appellant to forbear from compelling him to sell or deliver his undertaking, refrain the appellant from ceasing to supply electricity to him for the purpose of his said undertaking and also refrain the appellant from preventing him from supplying electric energy in the area mentioned in his licence.
Some other incidental reliefs were also sought.
The High Court came to the conclusion that though the notice issued by the appellant on January 8, 1959 is a valid notice under section 7(4) of the Act but that by itself is not sufficient to compel the respondent to sell his undertaking to the appellant; before the respondent can be compelled to sell his undertaking to the appellant it was necessary for the appellant to exercise its option to purchase the undertaking on the expiration of the period of licence.
As the appellant had failed to exercise that option on the expiration of the period of licence it cannot compel the respondent to sell his undertaking.
On the basis of these findings the High Court has substantially granted the relief prayed for by the respondent.
The appellant challenged the correctness of this conclusion.
On the other hand the respondent is supporting the judgment of the High Court not only on the ground accepted by the High Court but also on some of the other grounds advanced on his behalf before the High Court but rejected by that Court.
We shall first take up the question whether the High Court was right in holding that the appellant had to take two independent steps viz. ( 1 ) an election to purchase the undertaking followed up by a notice to the respondent in pursuance of that election within the period mentioned in section 7(4) of the Act and (2) exercise its option to purchase on the expiration of the period of licence and communicate the same to the respondent.
Before addressing ourselves to that question it is necessary to mention that the High Court 's finding that the rights of the Shriman Sarkar, (Baroda Government) to purchase the undertaking under section 9 of the Baroda Electricity Act had devolved on the State Government was not challenged before us.
Therefore it is not necessary for us to trace how the rights of the Baroda Government came to devolve on the then State of Bombay.
But the respondent did contest the appellant 's claim to exercise that right.
That question we shall separately consider.
For the present we shall proceed on the basis that the appellant is entitled to exercise the right of purchase conferred on the Baroda Government under the licence read with section 9 of the Baroda Electricity 584 Act.
We may also state at this stage that the conclusion of the High Court that the licence issued under s, 9 of the Baroda Electricity Act should be considered as a licence issued under section 7 of the Act was also not challenged before us.
Now we shall proceed to consider the true scope of section 7 of the Act.
For our present purpose only sub sections 1, 2 and 4 of section 7 of the Act are relevant.
They read as follows: "Section 7 ( 1 ).
Where a license has been granted to any person not being a local authority, and the whole of the area of supply is included in the area for which a single local authority is constituted, the local authority shall, on the expiration of such period, not exceeding fifty years and of every such subsequent period not exceeding twenty years, as shall be specified in this behalf in the license, have the option of purchasing the undertaking, and, ff the local a uthority, with the previous sanction of the State Government, elects to purchase, the licensec shall sell the undertaking to the local authority on payment of the value of all lands, buildings, works, materials and plant of the licensee suitable to, and used by him for, the purposes of the undertaking, other than a generating station declared by the license not to form part of the undertaking for the purpose of purchase,.
such value to be, in case of difference or dispute, determined by arbitration: (4) Not less than two years ' notice in writing of any election to purchase under this section shall be served upon the licensee by the local authority or the State Government as the case may be.
In our opinion sub section
(4 ) of section 7 is complementary to sub as.
(1) and (2) of that Section and therefore they must be read together.
On an analysis of these provisions it is seen that before a licensec can be compelled to sell his undertaking, the authority entitled to purchase must elect to purchase the same by exercise of the option given to it under the licence read with section 7 of the Act followed by a notice as required by section 7 (4) of the Act.
In section 7 the expression "option of purchasing an undertaking" merely means the right of purchasing the undertaking.
The word 'option ' is 'used because two courses are open to the concerned authority namely, either to purchase the undertaking or renew the licenee.
Once the authority elects to purchase then, the notice prescribed in sub section 4 should be given before the period mentioned thereto.
We are not able to agree with the High Court that the Section contemplates two stages namely (1) to elect to purchase the 585 undertaking at least two years before the expiration of the licenee and (2 ) exercise the option to purchase at the end of the licence period.
The exercise of option to purchase as well as electing to purchase is one integral process and not two independent steps.
By the very act of electing to purchase the authority exercises its option to purchase.
In our opinion sub sections 1, 2 and 4 of section 7 are plain and unambiguous.
They do not lend them selves to any subtleties.
In construing a provision, all its relevant parts should be considered together and their true effect ascertained.
One can easily find out the reasons behind the procedure prescribed in section 7.
In view of the term of the licenee read with section 7 (1 ) and (2 ) the concerned authority has two courses open before it.
It can either decide to purchase the undertaking or renew the licence on the expiration of the period for which the licence is granted.
The licensee must know in good time what course the authority is going to adopt so that he may so arrange his affairs as to Cause least inconvenience to himself.
Hence though the power to exercise the option to purchase arises on the expiration of the period of licence as per the terms of the licenee, section 7 lays down that if the authority wants to purchase the undertaking it must elect to do so at least two years before the expiration of the licence and communicate the same to the licensec.
Once the concerned authority exercises its option and communicates the same to the licensee, the same is binding on the authority as well as the licensec.
Otherwise there is bound to be considerable inconvenience both to the licensee and to the public.
We are not able to find any good reason for reading into section 7 a requirement that after a notice under section 7(4) is issued the authority must again exercise its option to purchase on the expiration of the period of licence.
It is no doubt true that the right to purchase the undertaking accrues only at the expiration of the period of licenee but for exercising that right, the authority must make its election within the period prescribed in section 7 (4) and issue a notice as required by that sub section.
The requirements of section 7 were fully complied with by the notice issued by the Bombay State Electricity Board on January 8, 1959.
We shall.
now take up the other contention advanced by Mr. H.R. Gokhale, learned Counsel for the respondent in support of the decision under appeal.
One of his contentions was that whether the State Government was competent to purchase the undertaking or not, neither the Bombay State Electricity Board nor the appellant was competent to exercise that right.
His .argument on this question proceeds thus: Section 7(1) prior to its amendment in 1959 empowered the local authority or the State Government to make the purchase 586 contemplated under that Section; the Electricity Board is not within the contemplation of that Section; the finding of the High Court that the provisions contained in sub sections 1, 2 and 4 of section 7 of the Act read with section 71 of the , confers on the appellant such a power is not correct because the right or option to purchase the undertaking was conferred on the State Government or the appropriate local authority under the licence and not under the provisions of the Act; in other words the said right is merely a contractual right and not a right flowing from the provisions contained in section 7 of the Act as.
held by this Court in Fazilka Electric Supply Co., Ltd. vs The Commr.
of Income Tax, Delhi(1) and therefore the appellant cannot take any assistance from section 71 of the .
This contention did not commend itself to the High Court.
We shall now proceed to examine how far the same is correct.
Section 71 of the provides: "Rights and options to purchase under Act 9 of 1910 to vest in Board.
Where under the provisions of the Indian Electricty Act, 1910 (9 of 1910), any right or option to purchase the undertaking of a licensec vests in the State Government or a local authority such right or option shall be deemed to be transferred to the Board, and shall be exercisable by the Board in accor dance with the provisions of the said Act applicable to the exercise of such right or option by the State Government or a local authority, as the case may be." Board is defined in section 2(2) of that Act as meaning, State Electricity Board constituted under section 5 thereof.
It is true that before section 71 can be held to be attracted to a case it must be shown that the right or option to purchase the undertaking of the licensec vested in the State Government or a local authority under the provisions of the Act.
It is also true that this Court had held in.
Fazilka Electric Supply Company 's(x) case that from the provisions of the Act read with the rules made thereunder it is manifest that the condition as to the option of purchase either by the local authority or by the Government is the result of an agreement between the applicant who had applied for licenee and the Government who granted the licenee.
In that case this Court was consideting whether the sale concerned in that case fell within the scope of section 10(2)(7) of the Indian Income Tax Act or whether it ' 'can be held 'to be compulsory acquisition as contended by the assessee.
A sale compelled by law may also be a 'sale ' under the Sale of Goods Act.
But that does not mean that the right to purchase the undertaking does not vest in the concerned authority (1) [1962] 3 Supp.
S.C.R. 496.
587 by virtue of section 7.
That right may accrue either because it is directly conferred by section 7 or because it is obtained as a result of a contract compelled by that Section.
In either case it is a right obtained by the authority by virtue of section 7.
There is no dispute that the licence granted must conform to the requirements of section 7.
In Okara Electric Supply Ltd. and Anr.
vs State of Punlab(1) this Court observed that sections 5,.
6 and 7 show that in the case of a licensee, specific provisions have been made for the acquisition of the undertaking in cases of revocation or cancellation of licenses.
For the aforementioned reasons we hold that appellant had acquired the right to purchase the undertaking by the combined operation of section 7 of the Act and section 71 of the .
It was next contended on behalf of the respondent that by the time the licence period expired, section 7 of the Act had been amended and section 71 of the Electric (Supply) Act, 1948 repealed, no provision was made to preserve the rights already acquired under those provisions, hence the appellant is not entitled to purchase the undertaking.
It is not the case of the respondent that either expressly or by necessary implication, the new law had taken away the right acquired earlier.
That being so section 6 of the General Clauses Act comes to the aid of the appellant.
That Section provides that where that Act or any Central Act or Regulation made after the commencement of that Act repeals an enactment hitherto made or hereafter to be made then unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, 'accrued or incurred under any enactment so repealed.
It also saves the previous operation of any enactment so repealed or anything duly done or suffered thereunder.
The right to purchase the respondent 's undertaking came to vest firsfly in the Bombay State Electricity Board subsequently in the appellant in view.
of the various notifications referred to earlier.
That right has to be worked on the basis of law as it stood on the date the notice under section 7(4) of the Act was given.
In this Court a new contention was taken on behalf of the respondent namely that in any case, the appellant 's right to purchase is conditional on the payment of the price as provided in section 7 and hence the appellant cannot demand possession of the undertaking without paying the price after the same is determined according to law.
This contention had not been taken before the High Court.
The High Court may go into this question while deciding the writ petition.
; 588 For the reasons mentioned earlier we allow this appeal, set aside the order of the High Court and remit the case back to High Court for deciding the issues that were left open.
Costs of this appeal shall be costs in the cause.
G.C. Appeal allowed.

summary/full:
On January 8, 1959 the Bombay State Electricity Board purporting to exercise its powers under section 7 of the read with section 71 of the gave notice to the res pondent that it would exercise its option of purchasing the electric supply undertaking which the respondent ran under a licence, on the expiry of the said licenee on February 10, 1962.
On the creation of the State of Gujarat the appellant corpOration was formed and succeeded to the rights and liabilities of the Bombay State Electricity Board.
The respondent filed a writ petition in the High Court in which he challenged the right of the appellant to purchase his undertaking.
The High Court came to the conclusion that though the notice issued on January 8, 1959 was a valid notice under section 7(4) of the Act that by itself was not sufficient to compel the respondent to sell his undertaking to the appellant; before the respondent could be compelled to sell his undertaking it was necessary for the appellant to exercise its option to purchase the undertaking on the expiration of the period of licenee, which it had not done.
respondent 's writ petition was therefore allowed.
The appellant came to this Court.
The questions that fell for consideration were: (i) whether the High Court 's interpretation of section 7 was correct; (ii) whether the appellant was empowered under section 71 of the to exercise the powers of the local authority under section 7.
HELD: (i) The provisions of the sub section of section 7 must be read together.
So read the section only means that before a licensee can be compelled to sell his undertaking the authority entitled to purchase must elect to purchase the same by exercise of the option given to it under the licence read with section 7 of the Act followed by a notice as required by section 7(4) of the Act.
In section 7 the expression 'option of purchasing an undertaking ' merely means the right of purchasing the undertaking.
The word 'option ' is used because two courses are open to the concerned authority namely.
either to purchase the undertaking or renew the licence.
Once the authority elects to purchase then the notice prescribed in subs.
4 should be given before the period mentioned therein.
The object of the provision is that the licensee must know in good time what course authority is going to adopt.
Otherwise there is bound to be considerable inconvenience to the licensec as well as to the public.
[584 F H, 585 C D] There is no good reason for reading into section 7 a requirement that after a notice under section 7 (4) is issued the authority must again exercise its option to purchase on the expiration of the period of license.
The exercise of option to purchase as well as electing to purchase is one integral process and not two independent steps.
By the very act of electing to purchase the authority exercises its option to purchase.
, [585,E F] 581 In the present case therefore the requirements of section 7 were fully complied with by the notice issued on January 8, 1954.
[585 F G] (ii) It is true that before section 71 can be held to be attracted to a case it must be shown that the right or option.
to purchase the undertaking of the licensee vested in the State Government or a local authority under the provisions of the Act.
In the present case the right to purchase vested in the concerned authority by virtue of section 7, and it could not be said that the right accrued only by virtue of the agreement under which the licence was granted.
The right to purchase may accrue either because it is directly conferred by section 7 or because it is obtained as a result of a contract compelled by that section.
In either case it is a 'right obtained by the authority by virtue of section 7.
The appellant Board was therefore empowered by section 071 to issue the notice under section 7.
[586 F 587 A] Fazilka Electric Supply Co. Ltd. vs The Commr.
of Income tax, Delhi, [1962] 3 Supp.
S.C.R. 496, distinguished.
Okara Electric Supply Ltd. & Anr.
vs State of Punjab, ; applied.


judgement:
Appeal No. 133 of 1965.
Appeal from the judgment and decree dated February 17, 1962 of the Madhya Pradesh High Court in First Appeal No. 89 of 1959.
LI 3 Sup.
CI/68 7 596 S.N. Anand, for the appellant.
S.S. Shukla, for legal representatives for respondent No. 1.
B.C. Misra and M.V. Goswami, for respondent No. 2.
The Judgment of the Court was delivered by Bachawat, J.
M.R. Malhotra was working as a contractor to the military and other authorities.
He needed funds for the execution of his contracts.
The appellant Bank formerly known as the Bharat Bank Ltd., agreed to finance the contracts and to advance monies to Malhotra against his bills for supplies under the contracts.
For the purpose of carrying out this arrangement Malhotra executed an irrevocable power of attorney in favour of the appellant on July 13, 1946.
The power of attorney recited: "Whereas we are working as contractors to the Government in its various departments and have entered into certain contracts and will in future enter into other contracts and whereas an agreement dated 13 7 1946 has been made between us and the Bharat Bank Ltd., in pursuance of which the attorneys have agreed to finance contracts and to advance us sums of money, against supply bills for payments to be received by us under the contracts issued by the Government in various departments on conditions mentioned therein; and whereas we, for the purpose of carrying out the terms of the said arrangement more effectively and to secure the interest of the attorneys are desirous of appointing the Bharat Bank Ltd., as our lawful attorneys in all matters relating to the receipt of all payments under the contracts made or to be made hereafter." The document appointed the appellant to be the attorneys of Malhotra "to present and submit supply bills regarding our contracts to the proper officer and/or authority of the Government Departments concerned; to obtain cheques for sums payable to us under the contracts directly in their own name or in our names in payment of such bills or other amounts and to cash and to receive the amount thereof and appropriate such receipts towards and in repayment of the advances made or to be made hereafter and all other monies due from us to the attorneys in any account what soever." The appellant was also authorised to sue for, recover and receive the monies due in connection with the contracts with the approval of MaLhotra, to conduct and defend proceedings in consultation with him and to take steps in his name and on his behalf.
Malhotra promised and declared that "all powers hereby granted are and shall be irrevocable as long as any claims of the attorneys against, us whether for principle, interest, costs, charges or otherwise remain outstanding and unpaid.
" Intimation of the power of attorney was given by the appellant to the military authorifles.
On July 19, 1948 Malhotra made out a bill on the military authorities for Rs. 49,633/8/7 then due to him in respect of his supplies under the contracts during 1945 46 and handed over 597 the bill to the appeLlant for collection.
On the bill, Malhotra made, the following endorsement: "Please pay to Bharat Bank Ltd.
,Jabalpur.
" The appeLlant sent the bill to the military authorities for payment.
Before the appellant received the payment, the amount due under the bill was attached by Takhatmal in execution of a money decree obtained by him against Malhotra.
The appeLlant filed objections in the execution proceedings.
On September 11, 1952 the objections were dismissed.
On December 12, 1952 the appellant filed a suit in the court of the 1st Additional District Judge, Jabalpur, against Malhotra and Takhatmal asking for a declaration that the appellant was an assignee of the biLl and that Takhatmal had no right to attach it.
The Trial Court held that the appellant was the assignee of the bill and decreed the suit.
Takhatmal filed an appeal against the decree.
The High Court of Madhya Pradesh allowed the appeal and dismissed the suit.
The present appeal has been filed by the plaintiff after obtaining a certificate from the High Court.
The sole question in this appeal is whether the power of attorney dated July 13, 1946 coupled with the endorsement on the bill dated July 19, 1948 amounts to an equitable assignment of the monies due under the bill in favour of the appellant.
There are many decisions on the question as to what constitutes an equitable assignment.
The law on the subject admits of no doubt.
In Palmer vs Carey(1) Lord Wrenbury said : "The law as to equitable assignment, as stated in Rodick vs Candell , 777, 778) is that: The extent of the principle to be deduced is that an agreement between a debtor and a creditor that the debt owing shall be paid out of a specific fund coming to the debtor, or an order given by a debtor to his creditor upon a person owing money or holding funds belonging to the giver of the order, directing such person to pay such funds to the creditor, will create a valid equitable charge upon such fund, in other words, wfll operate as an equitable assignment of the debts or fund to which the order refers." In construing the power of attorney it is necessary, to bear in mind that the relationship of the two parties, Malhotra and the Bank was that of borrower and lender and that the document was brought into existence in connection with a proposed transaction of financing of Malhotra 's contracts.
The loans were to be advanced by the Bank against Malhotra 's bills for supplies under the contracts.
The obvious intention of the parties was to provide protection for the lender and to secure repayment of the loans.
With that object in view the lender was authorised to receive pay (1) ; at 706.
598 ment of the bills and to appropriate the receipts towards repayment of the loans.
As the lender had an interest in the fundS the power of attorney was expressed to be irrevocable.
On a proper construction of the document the conclusion is irresistible that there was an agreement between the lender and the borrower that the debt owing to the lender would be paid out of a specific fund of the borrower in the hands of the Government authorities.
The power of attorney coupled with the endorsement on the bill dated July 19, 1948 was a clear engagement by Malhotra to pay the appellant Bank out of the monies receivable under the bill and amounted to an equitable assignmen of the fund by way of security.
The question whether a document amounts to an equitable assignment or not is primarily one of construction but we may mention a few decisions which throw light on the matter.
Jagabhai Lallubhai vs Rustamji Nauserwanji(x) the Bombay High Court held that an agreement to finance the borrower and a power of attorney of even date to receive the monies due to the borrower under certain contracts had the effect of an equitable assignment of the funds.
In Loonkaran Sethiya vs State Bank of Jaipur(2) this Court held that a power of attorney authorizing a lender to execute a decree then passed in favour of the borrower or which might be passed in his favour in a pending appeal and to credit to the borrower 's account the monies realised in execution of the decree amounted to an equitable assignment of the funds.
In the last case the Court held that there was no transfer of the decree, or of the claim which was the subject matter of the pending appeal as the borrower continued to be the owner and the lender was merely authorised to act as his agent.
Nevertheless the Court held that the power Of attorney amounted to a binding equitable assignment.
An actionable claim may be transferred under section 130 of the Transfer of Property Act.
Where a document does not amount to a transfer within section 130 it may apart from and independently of the section operate as an equitable assignment of the actionable claim.
In the present case the power of attorney authorised the appellant to receive all monies due or to become due to Malhotra in respect of pending or future contracts with the government authorities.
Counsel argued that there was no engagement to pay out of specific fund and therefore there was no assignment.
We find no substance in the contention.
There can be a valid equitable assignment of future debts, see Tailby vs Official Receiver(3).
As and when the debt comes into existence it passes to the assignee, (1) Born.
(2) ; (3) 599 As a matter of fact when the debt due to Malhotra came into existence, he specifically appropriated it for payment to the appellant.
On July 19, 1948 he made out a bill for the monies then due to him and endorsed on it: "Please pay to Bharat Bank Ltd., Jabalpur.
" The bill with the endorsement was sent to and acknowledged by the military authorities.
Counsel submitted that this document was a pay order.
Now there is an essential distinction between a pay order and an assignment.
A pay order is a revocable mandate.
It gives the payee no interest in the fund.
An assignment creates an interest in the fund and is not revocable.
Read in the light of the power of attorney the endorsement on the bill dated July 19, 1948 created an interest in a specific fund and was irrevocable.
There was thus a sufficient equitable assignment of a specific fund in favour of the appellant.
The High Court was in error in holding that there was no equitable assignment.
In the result, the appeal is allowed, the decree passed by the High Court is set aside and the decree passed by the 1st Additional District Judge, Jabalpur, is restored.
The respondents who are the legal representatives of Takhatmal shall pay out of his assets in their hands the costs of this appeal as also the costs in the courts below.
Y.P. Appeal allowed.

summary/full:
The appellant Bank, agreed to finance the contracts undertaken by M. and to advance monies against his bills for supplies under the contracts.
For the purpose of carrying out this arrangement M executed an irrevocable power of attorney in favour of the appellant authorising the latter to receive all monies due or to become due to M in respect of pending or future contracts.
M made a bill, endorsed it in favour of the appellant for collection, and handed it over to the appellant for collection.
Before the appellant received the payment, the amount under the bill was attached by the first respondent in execution of a money decree obtained by him against M.
The appellant filed a suit for a declaration that he was the assignee of the bill and the first respondent had no right to attach it.
The suit was decreed, but in appeal, the High Court dismissed the suit.
In appeal, on certificate, this Court: HELD: The appeal must be allowed.
The power of attorney coupled with the endorsement on the bill was a clear engagement by M to pay the appellant Bank out of the monies receivable under the bill and amounted to an equitable assignment of the fund by way of security.
The obvious intention of the parties was to provide protection for the lender and to secure repayment of the loans.
With that object in view the lender was authorised to receive payment of the loans.
As the lender had an interest in the funds the power of attorney was expressed to be irrevocable.
[597 D, H] There can be a valid equitable assignment of future.
debts.
A pay order is revocable mandate.
It gives the payee no interest in the fund.
An assignment creates an interest in the fund and is not revocable.
Read in the light of the power of attorney the endorsement on the bill created an interest in a specific fund and was irrevocable.
There was thus a sufficient equitable assignment of a specific fund in favour of the appellant Bank.
[598 H; 599 B] Loonkaran Sethiya vs State Bank of Jaipur, ; followed.
Palmer vs Carey ; at 706; Tailby vs Official Receiver, , applied, Jagabhai Lallubhai vs Rustamji Nauserwanji, Bom.
311, referred to.


judgement:
Appeal No. 1103 of 1955.
Appeal from the order dated August 9, 1963 of the Andhra Pradesh High Court in Writ Petition No. 431 of 1961.
D. Natsaralu, A. Subba Rao and K. Javaram, for the appellant.
B. Parthasarathy, for respondent No. 1.
625 T. Satyanarayana, for respondent No. 2.
The Judgment of the Court was delivered by Hegde, J.
A short, none the less interesting question of law arises for decision in this appeal by certificate, and that question is whether a tank can be considered as a charitable institution within the meaning of those words in section 2(E) of the Andhra Inams (Abolition & Conversion into Ryotwari Act) 1956 (Act No. 36 of 1956) (to be hereinafter referred to as the Act).
The Inam with which we are concerned in this case stands abolished under the Act.
The appellant wants the property comprised in that Inam to be registered in his name.
His contention is that prior to its abolition he was the/namdar of that Inam though he had the liability to repair the tank in his village from out of the income of that/nam.
The Authorities under the Act have rejected 'Iris claim that he was the Inamdar of the Inam in question.
They have come to the conclusion that the Inam was in favour of the tank and that he was in possession of the Inam property only as the Manager of the tank which according to them was a charitable institution.
This conclusion has been upheld by the High Court.
It is not known as to who granted the Inam in question.
The grant is lost in antiquity.
The only evidence we have relating to this/nam are the entries in the Inam register.
A copy of that register has been produced in this case.
Therein the Inam is shown to have been granted to the tank "uracheruvu".
Under column 8 it is mentioned that it was given for repairs of the pond called uracheruvu situated close to the village.
Under column 10 it is mentioned that it is to be in force so long as the repairs of the tank are performed.
The ancestor of the appellant was shown to be the Manager of the charitable institution viz., the tank.
Under the remarks column it is mentioned "The pond is of great use for the cattle and people of the village.
The Inam can be confirmed permanently so long as the repairs are performed.
The pond for which the Inam was originally granted was situated north to the village and is now out of use.
At the request of the villagers the late Collector Mr. Fraser issued an order in 1819 that the proceeds of this Inam can be applied to the present existing Kunta which is south to the village and so of use.
" From these entries it is clear that the Inam was granted in favour of the tank known as "uracheruvu".
It has been so considered at least ever since 1819.
Therefore we are unable to uphold the contention of the appellant that it was a grant in favour of his family subject to the liability to.
repair the tank.
It appears that the ancestors of the appellant and at present the appellant is looking after the management of the tank.
626 Mr. Narsaraju, learned Counsel for the appellant contended that even if we come to the conclusion that the Inam was granted for a charitable purpose, the object of the charity being a tank, the same cannot be considered as a charitable institution.
According to him a tank cannot be considered as an institution.
In support of that contention of his he relied on the dictionary meaning of the term 'institution '.
According to the dictionary meaning the term 'institution ' means "a body or organization of an association brought into being for the purpose of achieving some object".
Oxford Dictionary defines an 'institution ' as "an establishment organisation or association, instituted for the promotion of some object especially one of public or general utility, religions, charitable, educational, etc.
" Other Dictionaries define the same word as 'organised society established either by law or the authority of individuals, for promoting any object, public or social '.
In Minister of National Revenue V. Trusts a.nd Guarantee Co. Ltd. (1) the Privy Council observed: "It is by no means easy to give a definition of the _ word "institution" that will cover every use of it.
Its meaning must always depend upon the context in which it is found.
" In Masjid Shahid Ganj and Ors. V. Shiromani Gurdwara Prabandhak Committee, Amritsar and Anr.(2) the Privy Council considered a Madrasah as institution though it doubted whether the same can be considered as a "juristic personality".
This is what the Privy Council observed: "A gift can be made to a madrasah in like manner as to a masjid.
The right of suit by the mutwali or other manager or by any person entitled to a benefit (whether individually or as a member of the public or merely in common with certain other persons ) seems hitherto to have been found sufficient for the purpose of maintaining Mohomedan endowments.
At best the institution is but a caput mortuum, and some human agency is always required to take delivery of property and to apply it to the intended purposes.
Their Lordships, with all respect to the High Court of Lahore, must not be 'taken as deciding that a "juristic personality" may be extended for any purpose to Muslim institutions generally or to mosques in particular.
On this general question they reserve their opinion.
" We may at this stage state that the Act has not defined either the expression "charitable institution" or even "institution".
Therefore we have to find out the meaning of that term with reference to the context in which it is found.
We must remember that the (1) (2) 627 expression "charitable institution" is used in a statute which abolishes Inams.
The Inam in question must undoubtedly have been granted by a Hindu.
Most of the Inams abolished by the Act were those granted by Hindu Kings in the past.
According to Hindu conceptions a tank has always been considered as an object of charity.
In the Tagore Law Lectures delivered in 1892 by late Parelit Prannath Saraswati on "The Hindu Law of Endowments", "From very ancient times the sacred writings of the Hindus divided works productive of religions merit into two divisions named ishta and purta a classification which has come down to our times.
So much so that the entire objects of Hindu endowments will be found included within the enumeration of ishta and purta works.
In the Rig Veda ishtapurttam (sacrifices and charities ) are described as the means of going to heaven.
In commenting on the same passage Sayana explains ishtapurtta to denote "the gifts bestowed in srauta and smarka rites.
" In the Taittiriya Aranyaka, ishtapurtta occur in much the same sense and Sayana in commenting on the same explains ishta to denote "Vedic rites like Darsa, Purnamasa etc.
and purta "to denote Smarkta works like tanks, wells etc.
At page 26 he again quotes Vyasa in these words: "Tanks, wells with flights of steps, temples, the bestowing of food, and groves these are called purttam.
" At page 27, the learned lecturer enumerates the purtta works.
Amongst them is included the construction of works for the storage of water, as wells, baolis, tanks etc.
The learned lecturer devotes his tenth lecture to "purtta".
In the course of that lecture he again states that the construction of reservoirs of water is.
classed by Hindu sages amongst the "purtta" and charitable works.
In this connection he quotes from various treatises such as: (i) Ashwalayana Grihya Parishishta; (ii) Vishnu Dharmottara; (iii) Skanda Purana; (iv) Nandi Purana; (v) Aditya Purana; (vi) Yama; (vii) Mahabharata etc.
In Jamnabai vs Khimji Vullubdass and Ors.(1) Sir Charles Sargent Kt.
, C.J. while interpreting a will observed thus: (1) I.L.R. at p. 9. 13 Sup.
C1/68 9 628 "We come to the latter part of clause 6, which directs the building of a well and "avada", (cistern for animals to drink water from), out of the surplus of his fund after providing for the outley of the two sadavarats and repairing his property.
Mr. Justice Jardine considered he could not presume a charitable object in a well and "avada".
Such an object is so frequently the result of charitable intention in Oriental countries, and i.s so entirely in accordance with the notions of the people of this country that we think that, in the absence of anything to show that the testator intended the well and "avada" to be built for the benefit of the property and there is nothing in the presen 't will to show such intention they should be presumed to have intended by the testator for the use of the public." In V. Mariyappa and Ors.
B.K. Puttaramayya and Ors(x) a Division Bench of the Mysore High Court observed thus: "The maintenance of Sadavartas, tanks, seats of learning and homes for the disabled or the destitute and similar institutions is recognised by and well known to Hindu law, and when maintained as public institutions they must be taken to have a legal personality as a Matha or the diety in a temple has, and the persons in charge of the Management would occupy a position of trust.
" That decision proceeds on the basis that a tank can be a charitable institution under Hindu law.
That decision was quoted with approval by late Bijan Kumar Mukherjea who later became the Chief Justice of this Court, in his Tagore Law Lectures delivered in August 1951.
Therein he observed: "It has been held that though Mutts and temples are the most common forms of Hindu religious institutions, dedication for religious or charitable purposes need not necessarily take one of these forms and that the maintenance of sadabartas, tanks, seats of learning and homes for the disabled or the destitute and similar institutions are recognised by and well known to Hindu law and when maintained as public institutions, they must be taken to have a legal personality as a Matha or the deity in a temple has, and the persons in charge of the management would occupy a position of trust.
" From the above discussion it is seen ' that under Hindu law a tank can be an object of charity and when a dedication is made in (1) I.L.R. [1957] Mys.
629 favour of a tank, the same is considered as a charitable institution.
It is not necessary for our present purpose to decide whether that institution can also be considered as a juristic person.
Once we come to the conclusion that the Inam with which we are concerned in this case was an Inam in favour of the "uracheruvu" (tank) that tank must be considered as a charitable institution under the Act.
Consequently after the abolition of the Inam, the Inam property gets itself converted into Royatwari property, of the "uracheruvu", to be managed by its Manager.
Admittedly the appellant is its present Manager.
Hence the property in question has to be registered in the name of the tank but it will" continue to be managed by the appellant so long as he continues to be its Manager.
In the result subject to our observations as regards the management of the property, the appeal is dismissed.
No costs.
R.K.P.S. Appeal dismissed.

summary/full:
The appellant claimed that certain property comprised in an Inam which was abolished by virtue of the Andhra Inams (Abolition & Conversion into Ryotwari) Act 36 of 1956 should be registered in his name.
His contention was that prior to its abolition he was the Inamdar of that Inam though he had the liability to repair a tank in his village from out of the income of Inam was granted for a charitable purpose, the object of assuming the Inam was granted for a charitable purpose, the.
object of the charity being a tank, the same could not be considered a charitable institution.
HELD: (i) It was clear from the evidence that the Inam was granted in favour of the tank and was not a grant in favour of the appellant 's family subject to the liability to 'repair the tank; and furthermore that the ancestors of the appellant and subsequently the appellant were looking after the management of the tank.
(ii) Under Hindu law a tank can be an object of charity and when a dedication is made in favour of a tank, it is considered as a charitable institution.
Once it was held that the Inam in the present case was in favour of the tank, the tank in question must be considered a charitable institution within the meaning of section 2(E) of the Act.
Consequently, after the abolition 'of the Inam, the Inam property is converted into Ryotwari property of the tank, to be managed by its manager.
Admittedly the appellant was the present manager and hence the property in question must be registered in the name of the tank but would ' continue to be managed by the appellant so long as he continued to be its manager.
[628 H 629 C] Minister of National Revenue V. Trusts and Guarantee Co. Ltd., ; Masjid Shahid Ganj and Ors.
V. Shiromani Gurdwara Parbandhak Committee, Amritsar and Anr, ; Jamnabai V. Khimji Vallubdass & Ors., I.L.R. at p. 9; and V. Mariyappa and Ors.
B.K. Puttaramayya and Ors.
I.L.R. [1957] Mys.
291: referred to.