judgement:
ivil Appeal No. 506 of 1989 Etc.
From the Judgment and Order dated 5.12.1986 of the Allahabad High Court in C.M.W.P. No. 207 of 1980.
Dr. L.M. Singhvi and R. B. Mehrotra for the Appellants.
Anil Dev Singh and Mrs. section Dikshit for the Respondents.
The Judgment of the Court was delivered by SINGH, J.
Special leave granted.
The appellants are engaged in the business of manufac ture and sale of Indian made foreign liquor and country liquor, under licence granted to them under the Provisions of U.P. Excise Act.
The appellants have installed vats in their Breweries ' premises for the storage of liquor.
The liquor stored in vats is bottled and sold under the supervi sion of officers of the Excise Department.
The Inspector of Weights and Measures issued notices to the appellants call ing upon them to get their vats verified, calibrated and stamped in accordance with the provisions of the U.P. Weights and Measures (Enforcement) Act, 1959, (hereinafter referred to as the Act).
The appellants preferred appeals against the notice issued by the Inspector on the ground that the provision of the Act were not applicable to the appellants ' undertaking, manufacturing alcohol but the appeal was dismissed by the Controller of Weights and Meas ures.
The appellants made petitions under Article 226 of the Constitution before the High Court of Allahabad challenging the orders of the respondents.
Before the High Court the appellants contended that the provisions of the Act were attracted to the appellants ' undertaking only at the stage of sale and anything done in the process of manufacture and storage of liquor could not be 378 subjected to the provisions of the Act and the notice issued by the Inspector of Weights and Measures was without any authority of law.
It was further urged that the calibration of vats storing liquor was not necessary and the direction issued by the respondents was without any authority of law.
Similar petitions were filed by the manufacturers of Syn thetic Rubber and Campher.
All the three sets of petitions were disposed of by a Division Bench of the High Court by a common judgment and order dated December 5, 1985.
The Divi sion Bench allowed the petitions filed by the Manufacturers of Synthetic Rubber and Campher but it dismissed the peti tions filed by the manufacturers of liquor on the finding that the provisions of the Act and the Notification issued thereunder are applicable to the manufacturers of liquor in the distillery and the notices issued by the respondents for the calibration of the storage vats were legal and valid.
Aggrieved the appellants have preferred the present peti tions for special leave to appeal.
Dr. L.M. Singhvi, learned counsel for the appellants urged that the High Court committed error in holding that the storage vats are required to be calibrated under the provisions of the Act.
He added that the provisions of the Act would apply if measures are used for transaction in trade and commerce, but keeping alcohol in storage vats does not amount to transactions in trade or commerce.
Learned counsel emphasised that unless the storage vats are used in transaction for trade and commerce the provisions of the Act would not be attracted.
In order to appreciate the conten tion, we would briefly refer to the relevant provisions of the Act.
Section 7 of the Act imposes prohibition on use of weights and measures other than standard weights and meas ures.
It provides that no unit of mass or measure, other than the standard weights or measures shall be used in any transaction for trade or commerce or any dealing or contract or for any work to be done or goods to be sold or delivered.
Section 10 further imposes prohibition on the sale or use of unstamped commercial or measuring instrument in trade or commerce unless it has been verified or reverified and stamped in the prescribed manner by an Inspector with stamp of verification.
These provisions impose legislative prohi bition that no weight or measure or weighing or measuring instrument shall be used or be kept for use in any transac tion for trade or commerce or for being sold, unless it has been verified by the Inspector of the Department in the prescribed manner.
Section 2(jj) defines the expression "use in transaction for trade or commerce " which is as follows: 379 "2(jj) use in transaction for trade or com merce with its grammatical variation and cognate expressions, means use for the pur poses of determining or declaring the quantity of anything in terms of measurement of length, area, volume, capacity or weight in or in connection with (a) any contract, whether by way of sale, purchase, exchange or otherwise, or (b) any assessment of royalty; toll; duty or other dues ' or (c) the assessment of any work done or serv ices rendered, otherwise than in relation to research or scientific studies or in individu al households for house holds purposes" Under the aforesaid definition clause the legislature has given an artificial extended meaning to the expression "use in transaction for trade or commerce".
According to the definition it means use for the purposes of determining or declaring the quantity of anything in terms of measurement of length or capacity or weight in or in connection with the clauses (a) and (b) mentioned therein.
Clause (b) refers to any assessment of royalty; toil; duty or other dues.
Accord ing to the extended meaning given by the legislature the provisions of the Act would be attracted if the assessment of royalty; toll; duty or dues is to be determined on the basis of the quantity of anything in terms of measurement of length, area, volium or weight.
there is no dispute that for the purposes of determining excise duty on the liquor pro duced by a manufacturer the assessment is made on the basis of the volume of the liquor produced and sold by the appel lants.
Since volume of the liquor produced and stored in vats is connected with the assessment of excise duty, it is covered by the expression "use in transaction for trade or commerce".
Ordinarily, the storage of alcohol in vats by itself may not amount to transaction for trade or commerce but under the extended meaning of the expression under Section 2(jj) even the storage of liquor in vats would be covered by the expression "use in transaction for trade or commerce" as volume of the liquor is necessary to be deter mined in connection with the assessment of excise duty.
We are, therefore, in agreement with the view taken by the High Court.
The learned counsel for the appellants urged that the High Court failed to consider the effect of Notification dated 28.8.1961 which made the provisions of the Act ap plicable to an undertaking engaged in the manufacture of alcohol at the stage of sale only.
The Notification is as under: 380 NOTIFICATION "KHADYA TATHA RASAD VIBHAG NOTIFICATION NO.
UPWM 1(3) 28 2401/XXIX D 524 58 dated August 19, 1961, published in U.P. Gazette, Part I, dated 25th August, 1961, page 1537.
In exercise of the powers conferred by sub section (3) of Section 1 of the Uttar Pradesh Weights and Measures (Enforcement) Act, 1959 (U.P. Act No. V of 1959), the Governor of Uttar Pradesh is pleased to appoint the first day of October, 1961, as the date on which the provisions of the said Act shall come into force in the whole of Uttar Pradesh in respect of: (a) Undertaking engaged in the manufacture of alcohol in so far as they undertake the sale of alcohol; and (b) Departments of Government in so far as they undertake the levy of duties of excise on alcohol.
" By the aforesaid Notification the provisions of the Act were made applicable to an undertaking engaged in the manu facture and sale of alcohol with effect from October 1, 1961.
Emphasis was laid by the learned counsel for the appellants on the expression "in so far as they undertake the sale of alcohol".
He urged that provisions of the Act occurring in the aforesaid Notification have been made applicable to the appellants ' undertaking at the point of sale of alcohol.
Before the sale of alcohol the provisions of the Act are not attracted and as such the storage vats cannot be required to be calibrated under the law.
Having given our anxious consideration to the question, we do not find any merit in the submission.
The alcohol stored in the storage vats is essentially for the purpose of sale and there is no dispute that the appellants manufacture and store alcohol in storage vats for the purposes of sale.
There is further no dispute that the officers of the Excise Department measure storage vats as prescribed by Rule 75 1 of the Excise Mannual, Volume 1.
Since the volume of the storage vats is measured by the officers of the Excise Department, the provisions of the Act for the purpose of sale would be applicable to the storage vats also.
But if there be any doubt about the applicability of the provisions of the Act the same stood removed by the subsequent Notifi cations dated May 17, 1962 and July 18, 1967.
Under these Notifications the provisions of the Act have been made applicable to all the under 381 takings in so far as they relate to units of capacity in respect of those clauses of undertakings to which the Act has been made applicable.
Having regard to these facts the High Court, in our opinion, was fight in holding that the storage vats are covered by the provisions of the Act.
Learned counsel for the appellants then urged that excise duty is assessed at the point of sale as held by the High Court of Allahabad in M/s Mohan Meakins Breweries vs State of U.P., [1979] U.P. Tax Cases 1048, therefore, provi sions of the Act are applicable to the issue vats only and no calibration is necessary for the storage vats.
We find no merit in the submission.
In the aforesaid decision the High Court held that under the provisions of the U .P.
Excise Act excise duty is a charge essentially on the production or manufacture of an excisable article but for administrative convenience it is imposed at a stage subsequent to the stage of manufacture.
This itself would make it clear that pro duced material is the subject matter of excise duty, even though the assessment of duty is done at the point of sale for convenience sake.
The storage of alcohol is required to be measured by the officers of the Excise Department under the provisions of the Excise Manual to ensure that there is no pilferage or unauthorised removal of alcohol as that would adversely affect the assessment of duty.
Storage vats are intimately connected with the assessment of excise duty, therefore provisions of the Act are applicable to storage vats also.
We are, therefore, of the opinion that no exception can be taken to the view taken by the High Court.
The appeals fail and the same are accordingly dismissed.
There will be no order as to costs.
N.P.V. Appeals dis missed.

summary/full:
The appellants, were engaged in manufacture and sale of liquor, under licence granted to them under the U.P. Excise Act.
They installed vats in their Breweries ' premises for the storage of liquor.
The liquor stored in vats was bottled and sold under the supervision of officers of the Excise Department.
The Inspector of Weights and Measures issued notices to them for getting their vats verified, calibrated and stamped in accordance with the provisions of the U.P Weights and Measures (Enforcement) Act, 1959.
The appellants filed appeals against the notices issued by the Inspector on the ground that the provisions of the Act were not applica ble to the appellants ' undertaking, manufacturing alcohol.
The appeals were dismissed by the Respondent Controller of Weights and measures.
The appellants filed writ petitions before the High Court challenging the orders of the respond ents.
The High Court dismissed the petitions holding that the provisions of the Act and the Notifications issued thereun der were applicable to the manufacturers of liquor in the distillery, and the notices issued by the respondents for the calibration of the storage vats were legal and valid.
Aggrieved, the appellants filed appeals by special leave in this Court contending that the High Court committed error in holding that the storage vats were required to be cali brated under the provisions of the Act, that the provisions of the Act would apply if measures were used for transaction in trade and commerce, but keeping alcohol in storage vats did not amount to transactions in trade or commerce, and that unless the storage vats were used in transaction for trade and 376 commerce, the provisions of the Act were not attracted.
Dismissing the appeals, HELD: 1.1 Under the definition clause in section 2(jj) of the U.P. Weights and Measures (Enforcement) Act, 1959, the legislature has given an artificial extended meaning to the expression "use in transaction for trade or commerce".
Ac cording to the definition it means use for the purposes of determining or declaring the quantity of anything in terms of measurement of length or capacity or weight in or in connection with the cls.
(a) and (b) mentioned therein.
Clause (b) refers to any assessment of royalty; toll; duty or other dues.
Thus, according to the extended meaning, the provisions of the Act would be attracted if the assessment of royalty; toll; duty or dues is to be determined on the basis of the quantity of anything in terms of measurement of length, area, volume or weight.
[379C E] 1.2 There is no dispute that for the purposes of deter mining excise duty on the liquor produced by a manufacturer, the assessment is made on the basis of the volume of the liquor produced and sold.
Since volume of the liquor pro duced and stored in vats is connected with the assessment of excise duty, it is covered by the expression "use in trans action for trade or commerce".
[379E F] 1.3 Ordinarily, the storage of alcohol in vats by itself may not amount to transaction for trade or commerce but under the extended meaning of the expression under section 2(jj), even the storage of liquor in vats would be covered by the expression "use in transaction for trade or commerce" as volume of the liquor is necessary to be determined in con nection with the assessment of excise duty.
[379F G] 1.4 The alcohol stored in the storage vats is essential ly for the purpose of sale and there is no dispute that the appellants manufacture and store alcohol in storage vats for the purpose of sale, and the officers of the Excise Depart ment measure storage vats as prescribed by Rule 751 of the Excise Manual, Volume 1.
Since the volume of the storage vats is measured by the officers of the Excise Department, the provisions of the Act for the purpose of sale would be applicable to the storage vats also.
[380F G] By Notification dated 19.8.1961 the provisions of the Act were made applicable to an undertaking engaged in the manufacture and sale of alcohol with effect from October 1, 1961.
Any doubts about the 377 applicability of the provisions of the Act stood removed by the subsequent Notifications dated May 17, 1962 and July 18, 1967, making the provisions of the Act applicable to all the undertakings in so far as they relate to units of capacity in respect of those classes of undertakings to which the Act has been made applicable.
[380E, H; 381A] Therefore, having regard to the above facts the High Court was right in holding that the storage vats were cov ered by the provisions of the Act.
[381B]


judgement:
Appeal No. 177 of 1954.
Appeal from the judgment and decree dated October 9, 1950 of the Bombay High Court in First Appeals Nos. 361 & 363 of 1948 from Original Decree arising out of the judgment and decree dated July 31, 1946, of the Court of Special Tribunal, Mangalvedhe in Special Suit No. 1322 of 1938.
L. K. Jha, Rameshwar Nath, J. B. Dadachanji and section N. Andley, for the appellant.
K. R. Bengeri and K. R. Chaudhari, for the respondent.
April 14.
The following Judgment of the Court was delivered by SINHA J. This is a defendants ' appeal by leave granted by the High Court of Judicature at Bombay from the decision of that Court, dated October 9, 1950, in two cross appeals from the decision of the Special Judge of the Special Tribunal Court at Mangalvedhe, dated July 31, 1946, in Special Suit No. 1322 of 1938.
Of the two cross appeals, the First Appeal No. 361 of 1948, by the appellants, was dismissed, and the First 481 Appeal No. 363 of 1948, by the plaintiff, was allowed.
The plaintiff respondent had instituted another suit, being suit No. 1894 of 1937, which was also tried along with Special Suit No. 1322 of 1938.
The former suit stands dismissed as a result of the judgment of the High Court, and no appeal has been brought against that judgment to this Court.
The suit out of which this appeal arises (Special Suit No. 1322 of 1938), was instituted under the provisions of the Sangli State Agriculturists Protection Act, granting certain reliefs from indebtedness to agriculturists of that State which was then outside what used to be called " British India ".
The suit as originally framed, prayed for accounts in respect of two mortgages, though there were really three mortgages, to be described in detail hereinafter, and for possession of the, lands comprised in those mortgages.
The first, defendant filed his written statement on January 6, 1940, contesting the suit mainly on the ground that the plaintiff had no title to the mortgaged properties in view of the events that had happened; that the mortgaged properties had been sold at auction and purchased by the defendant 's father who, thus, became the full owner thereof; and that he had sold most of the properties to other persons who were holding those properties as full owners.
Defelidant No. 3 who also represents the original mortgagee, filed a separate written statement supporting the first defendant.
Of the defendants who are transferees from the original mortgagees or their heirs only defendant No. 8 filed his written statement on March 26, 1940, substantially supporting the first defendants written statement and adding that he had purchased the bulk of the mortgaged properties after acquisition of full title by the mortgagees themselves more than 12 years before the institution of the suit, and that, therefore, it was barred by limitation.
The trial court dismissed the suit by its judgment dated November 26, 1941, with costs.
On appeal by the defeated plaintiff, the Special Bench of the High Court of Sangli State, by its judgment dated June 13, 1944, remanded the suit for a fresh trial after having permitted the plaintiff to amend the plaint so as to 482 include the relief for redemption.
It appears that during the pendency of the suit after remand, an application was made in February, 1945, for making substitution in place of defendant No. 2 who had died meanwhile, but the application was refused by the Court on the ground that the suit had abated as against that defendant.
After reframing the issues and rehearing the ,lase, the trial court, by its judgment and decree dated July 31, 1946, dismissed the suit as against defendants 6 to 9 who were holding portions of the mortgaged properties by sale deeds of the years 1919 and 1922, for more than 12 years, as barred by limitation under article 134 of the Limitation Act.
The Court decreed the suit in respect of the mortgaged portion of R. section No. 1735, having an area of 16 acres and 21 gunthas, as against defendant No. 3, and R. section No. 334 against defendant No. 1 's heirs.
Each party was directed to bear its own costs throughout.
From that decision, the defendants preferred a first appeal, being First Appeal No. 361 of 1948, and the plaintiff filed a crossings, being First Appeal No. 363 of 1948, in the High Court of Judicature at Bombay.
Both the appeals were heard together along with two other cross appeals arising out of the other suit mentioned above.
The High Court, by its judgment and decree dated October 9, 1950, dismissed the defendants ' appeal No. 361 of 1948, and allowed the plaintiff 's appeal No. 363 of 1948, with costs, holding that article 148 and not article 134 of the Limitation Act, applied to the suit, and that, therefore, it was not barred by limitation.
In the result, the plaintiff 's suit was decreed in its entirety.
Hence, this appeal by the defendants.
A number of Questions of fact and law have been raised by the learned counsel for the appellants, but before we proceed to deal with them, it is convenient to dispose of the preliminary points in bar of the suit.
At the fore front of his submissions, the learned counsel for the appellants contended that the suit was outside the jurisdiction of the Special Court created under the Sangli State Agriculturists Protection Act I of 1936.
With reference to the provisions of that Act, it was contended that the Act authorized the Special Court to 483 take accounts and to reopen closed transactions only up to the year 1915, and that as the transactions which were the subject matter of the suit, were of the years 1898, 1900 and 1901, the Special Court was not competent to go into those transactions and grant any relief to the agriculturist plaintiff.
In our opinion, there is no substance in this contention.
The Sangli Act referred to above, had chosen the year 1915 as the dateline beyond which the court was not competent to grant any relief to agriculturists, by way of reopening of closed transactions.
But that does not mean that the court itself was incompetent to grant any other relief in respect of transactions of a date prior to 1915.
If the legislature had intended to limit the jurisdiction of the Special Court, as contended on behalf of the appellants, nothing would have been easier than to say in express terms that the court 's jurisdiction to grant relief was limited to transactions of that year and after, but there are no such words of limitation in any part of the statute.
The operative portion of the statute does not contain any such provision.
In our opinion, therefore, the Special Court was competent to entertain the suit for redemption, though it would not be competent to reopen those transactions even if any such question of reopening closed transactions had been raised.
But it is manifest that no such question arose out of the pleadings in this case.
Hence, those words of limitation are wholly out of the way of the plaintiff.
It may be mentioned that no such plea of want of jurisdiction of the trial court, had been raised in the pleadings or in the issues in the courts below.
This ground was raised, for the first time, in the statement of case in this Court.
The preliminary objection to the jurisdiction of the trial court is, thus, overruled.
It was next contended that the suit was barred by limitation of one year under article 12 of the Limitation Act.
The point arose in this way.
The properties sought to be redeemed were mortgaged, as will presently appear, successively under three bonds of the years 1898, 1900 and 1901, by the plaintiff 's father, Gundi (omitting all reference to his brothers).
484 It appears that there was a decree for money of the year 1903, in favour of a third party who is not before us.
Gundi had been stied as the original defendant, but after his death, his place was taken by his brother Sadashiv as his heir and legal representative.
In execution of the decree, the mortgaged properties were auction purchased by the mortgagee 's Fulchand, son of the first defendant as it appears from the sale certificate, Exh.
D 56, dated October 31, 1907.
On the basis of this auction purchase, it, has been contended on behalf of the mortgagee that unless the sale were set aside, it would bind Gundi and his successor in interest, the plaintiff.
The High Court has held that article 12 is out of the way of the plaintiff because neither the plaintiff nor her father was a party to the sale.
If Gundi himself were a party to the execution proceedings, the sale as against him, would bind his estate and his successor in interest.
But it appears that Gundi was substituted by his brother Sadashiv in the execution proceedings.
If Sadashiv could not be the representative in interest of Gundi, as will presently appear, he could not have represented Gundi 's estate, and, therefore, the gale as against him, would be of no effect as against the plaintiff.
Bat it was argued in answer to this contention that the decision of the Privy Council in the case of Malkarjun Bin Shidramappa Pasare vs Narhari Bin Shivappa (1), is an authority for the proposition that even if the property was sold by substituting a wrong person as the legal representative of the judgment debtor, the sale would bind the estate of the judgment debtor as much as if the right legal representative had been brought on the record of the execution proceedings.
Assuming that the decision of the Privy Council in Malkarjun 's case (supra) is correct, and that it is not subject to the infirmities of an ex parte judgment, asimay well be argued, that decision is clearly distinguishable so far as the present case is concerned.
In Malkarjun 's case, the executing court had been invited to decide the question as to who was the true legal representative of the judgment debtor, and the court, after (1) (1900) L.B. 27 1, A. 216 485 judicially determining that controversy, had brought on record the person who was adjudged to be the true legal representative.
The sale was held to be of the property of the judgment debtor through his legal representative, after the adjudication by the court.
The Privy Council held that though the decision of the court on the question as to who was the true legal representative, was wrong, it was a decision given in that litigation which affected the judgment debtor and his true legal representative, unless set aside in due course of law.
In the present case, there was no such adjudication.
From the scanty evidence that we have on this part of the case, it appears that Gundi, the original defendant, had died and had been, without any controversy, substituted by his brother, Sadashiv.
The court had not been invited to determine any controversy as between Sadashiv and the true legal representative of Gundi deceased.
In execution proceedings, the property was sold as that of Sadashiv the substituted judgment debtor.
It was a moneysale and passed only the right title and interest of Sadashiv, if it bad any effect at all.
Malkarjun 's case (supra), therefore, is of no assistance to the appellants.
The plaintiff, Gundi 's daughter, not being affected in any way by the sale aforesaid, it is not necessary for her to sue for setting aside the sale.
She was entitled, as she has done, to ignore those execution proceedings, and to proceed on the assumption, justified in law, that the sale had not affected her inheritance.
The suit is, therefore, not barred by article 12 of the Limitation Act.
It was next contended that even if article 12 was not available to the defendants by way of a bar to the suit, the suit was certainly barred under article 134 of the Limitation Act.
Under article 134, the plaintiff has to sue to recover possession of immovable property mortgaged and, afterwards, transferred by the mortgagee for a valuable consideration, within 12 years from the date the " transfer becomes known to the plaintiff ".
On the other hand, it has been contended on behalf of the plaintiff that the usual 486 rule of 60 years ' limitation under, article 148 of the Limitation Act, governs the present case.
On this part of the case, the defendants suffer from the initial difficulty that the sale deeds relied upon by them in aid of the plea of limitation under article 134, have not been brought on the record of this case, and, therefore, the Court is not in a position to know the exact terms of the sale deeds.
This difficulty, the appellants sought to overcome by inviting our attention to the statements made in paragraph 8 of the plaint.
But those are bald statements giving the reasons why the defendants other than the original mortgagee, were being impleaded as defendants.
There is no clear averment in that paragraph of the plaint about the extent of the interest sold by those sale deeds and other transfers referred to therein.
The Court is, therefore, not in a position to find out the true position.
Those sale deeds themselves were the primary evidence of the interest sold.
If those sale deeds which are said to be registered documents, were not available for any reasons, certified copies thereof could be adduced as secondary evidence, but no foundation has been laid in the pleadings for the reception of other evidence which must always be of a very weak character in place of registered documents evidencing those transactions.
Article 134 of the Limitation Act contemplates a sale by the mortgagee in excess of his interest as such.
The legislature, naturally, treats the possession of such transferees as wrongful, and therefore, adverse to the mortgagor if he is aware of the transaction.
Hence, the longer period of 60 years for redemption of the mortgaged property in the hands of the mortgagee or his successor in interest, is cut down to the shorter period of 12 years ' wrongful possession if the transfer by the mortgagee is in respect of a larger interest than that mortgaged to him.
In order, therefore, to attract the operation of Art,. 134, the defendant has got affirmatively to prove that the mortgagee or his successor in interest has transferred a larger interest than justified by the mortgage.
If there is no such proof, the shorter period under article 134 is not available to the 487 defendant in a suit for possession after redemption.
A good deal of argument was addressed on the question as to upon whom lay the burden to prove the date of the starting point of limitation under that article.
It was argued on behalf of the defendants appellants that as it is a matter within the special knowledge of the plaintiff, the plaint should disclose the date on which the plaintiff became aware of the transfer.
On the other hand, it was contended on behalf of the plaintiff respondent that it is for the defendants to plead and prove the facts including the date of the knowledge which would attract the bar of limitation under article 134.
As we are not satisfied, for the reasons given above, that article 134 is attracted to the present case, it is not necessary to pronounce upon that controversy.
It is, thus, clear that if articles 12 and 134 of the Limitation Act, do not stand in the way of the plaintiff 's right to recover posses. ,ion, the only other Article which will apply to the suit, is article 148.
It is common ground that if that Article is applied, the suit is well within time.
Before dealing with the factual aspects of the case, it is necessary to deal with another plea in bar of the suit raised on behalf of the appellants.
It is contended that the suit is bad for defect of parties in so far as the heirs of the second defendant are concerned.
It appears from the order dated March 27, 1946, passed by the trial court during the pendency of the suit after remand, that the second defendant died on April 26, 1943, that is to say, while the appeal before the Bombay High Court was pending in that Court before remand.
The then appellant who was the plaintiff, did not take steps to bring on record the legal representatives of that defendant.
An attempt was made by the plaintiff later on to get his heirs substituted on the record, but the Court upheld the defendants objection and did not allow substitution to be made.
It was, therefore, noted that the appeal which was then pending in the High 'Court, had abated as against defendant No. 2, and that, the order of remand made after his death and in the absence of his legal representatives, would not affect them.
Therefore, it was 488 contended that the whole suit would abate, because, in the absence of the heirs of the deceased defendant No. 2, the suit was imperfectly constituted under 0. 34, r.
I of the Code of Civil Procedure.
That rule requires that " all persons having an interest either in the mortgage security or in the right of redemption shall be joined as parties. .
The original mortgagee.
under the three mortgages, was Kasturchand Kaniram.
The defendant No. 1 has contested this suit by filing a separate written statement of his own as the successor in interest of the original mortgagee.
It does not appear from the pleadings that the second defendant was a joint mortgagee with the first defen dant or his ancestors.
The only statement in the plaint in para.
8, with reference to the second defendant, is that the " Lands R. section No. 1735 has gone to the share of defendant No. 2.
Defendant No. 3 looks after all the transactions of defendant No. 2 and the shop running under the name of ' Kaniram Kasturchand ' has gone to the share of defendant No. 3 ".
Thus, it is not a case of the first defendant being joint with the other defendants including defendant No. 2 who is not now represented on the record.
If defendant No. 2 had any distinct interest, that, on the plaint, appears to be confined to R. section No. 1735.
In the written statement filed on behalf of the third defendant, it is stated in para.
9 that the mortgaged portion of R. section No. 1735 which, according to the plaint, was the property of the second defendant, was really in possession of the third defendant as owner.
It would, thus, appear that even in respect of that plot, the second defendant had no subsisting interest.
This claim of the third defendant is strengthened by the fact that the second defendant did not file any written statement challenging he statement aforesaid of the third defendant or claiming any interest in that plot or any other part of the mortgaged property.
The second defendant had remained ex parte throughout, apparently because he had no interest in the property to be redeemed.
In any view of the matter, his heirs are not parties to this suit, and any determination in this suit will not bind them.
But it does appear that 489 the second defendant had no subsisting interest, if he had any at any anterior period, in any portion of the mortgaged property.
It was also contended that the original defendant No. 8 died, and in his place defendants Nos.
8a to 8g were substituted.
It appears that of the seven persons substituted on the record as the legal representatives of the original defendant No. 8, only defendants 8e, 8f and 8g were served, and the others, namely, 8a, 8b, 8c and 8d were not served.
On those facts, it was contended that the suit for redemption was bad in the absence of all the necessary parties.
It was sought, at one stage of the arguments, to be argued that the suit had abated against defendant No. 8, and this argument, in the High Court, was met by the observation that under O. XXII, r. 4, Code of Civil Procedure, it was enough to bring on record only some out of the several legal representatives of a deceased party, on the authority of the judgment of the Bombay High Court in Mulchand vs Jairamdas (1).
But on the facts stated above, there was no room for the application of r. 4, O. XXII of the Code.
All the legal representatives, at any rate, all those persons who were said to be the legal representatives of the deceased defendant No. 8, had been substituted.
Thus, the requirements of O. XXTI had been fulfilled.
If, subsequently, some of the heirs, thus substituted, are not served, the question is not one of abatement of the suit or of the appeal, but as to whether the suit or the appeal was competent in the absence of those persons.
It does not appear that the absent parties were really necessary parties to the suit or the appeal in the sense that they were jointly interested with the others already on the record in any portion of the mortgaged property.
In what circumstances they were not served or ordered to be struck off from the record, does not clearly appear from the printed record before us.
The defendant No. 8e who happens to be the brother of the original defendant No. 8, has only filed a written statement claiming that he and his vendor, defendant No. 7, had been in possession for more than 12 years, and that (1) , 490 the suit was, on that count, barred by limitation.
None of the other defendants who had been brought on the record in place of the original defendant No. 8, has appeared in the suit or in the appeal to contest the claim of defendant No. 8e that he was in possession of that portion of the property, namely, 6 acres and 32 gunthas out of R. section No. 242 (old survey No. 233).
Renee, there was no question of abatement of the suit or the appeal.
The only question which may or may not be ultimately found to be material on a proper investigation, may be whether the decree to be passed in this case, would be binding on those who had not been served.
For ought we know it may be that they were not interested in the plot sought to be redeemed.
On these findings, it must be held that the preliminary objections raised on behalf of the defendants in bar of the suit, must be overruled.
Hence, the whole suit cannot be held to be incompetent for the reason that the heirs of defendant No. 2 have not been brought on the record.
Having, thus, disposed of the specific pleas in bar of the suit, we now turn to the contentions bearing on the factual aspects of the controversy.
It was contended that the plaintiff who is admittedly the daughter of Gundi, has not established her title to the mortgaged properties.
In this connection, it is convenient to set out the essential facts in relation to the three mortgage.
deeds in question.
The first mortgage is dated June 4, 1898, in favour of Kasturchand Kaniram, executed by Gundi, son of Appa, for the sum of Rs. 700, the amount borrowed by him, mortgaging 7 survey numbers with an aggregate area of 43 acres and 38 gunthas.
It was a mortgage with possession for a period of 4 years, with Gundi 's two brothers Sadashiv and Rama as sureties for the repayment of the amount borrowed which was the personal responsibility of Gundi under the terms of the document.
But the property mortgaged is admittedly the ancestral land of the three brothers.
The second mortgage between the same parties in respect of the same properties, bears the date May 25, 1900.
It secures a further advance of Rs. 300 to the mortgagor, the payment of which debt 491 is again assured by his two brothers Sadashiv and Rama as sureties.
The third mortgage bond is for a further advance of Rs. 200 to the mortgagor Gundi, with his brothers aforesaid again figuring as sureties.
It would, thus, appear that all the three mortgages are between the same parties as mortgagor and mortgagee, and the two brothers of the mortgagor join in executing the mortgages as sureties, the property given in mortgage belonging to all the three brothers.
The total advance of Rs. 1,200 under those three mortgages, was made to the principal debtor, Gundi.
It appears that, of the three brothers, Rama died first, and then Gundi, some time in 1903, survived by his two daughters the plaintiff and defendant No. 13.
The plaintiff 's case is that the common ancestor, Appa, in his lifetime, had effected a partition amongst his three sons aforesaid, giving them each specific portions of his lands, reserving a portion for the maintenance of his wife.
Those transactions are exhibits P 43, P 44, P 45 and P 46, all dated August 31 or September 1, 1892, and, apparently, forming parts of the same transaction.
These are formal documents giving details of the lands allotted to each one of the three brothers and to their mother by way of maintenance.
The common recital in these documents, is that the executant of the documents, Appa, had three sons Gundi, Sadashiv and Rama, in order of seniority " who cannot pull on together The document further recites: ".Hence, separation having been effected with your consent, (I have) divided in every way and given you the estate, the land, the assets etc.
, pertaining to the one third share.
The same are as under. " Then follow the details of the properties separately allotted to each of them.
The plaintiff 's case is that ever since 1892 the date of the documents aforesaid the three branches of the family had become separate in estate, if not also divided in all respects, and that on the death of Raina, Guildi and his brother Sadashiv inherited his one third share in equal moieties, that is to say , on the death of their mother and their brother, the two brothers became owners of half and half of the ancestral 492 property left by Appa who appears to have died soon after the alleged partition.
The plaintiff 's case further is that the principal mortgagor in all those three transactions aforesaid, was Gundi, and his two brothers had joined only as sureties by way of additional security in favour of the mortgagee, It has been contended on the other hand on behalf of the defendants appallants that, in the first instance, the documets of 1892, referred to above, do not evidence an actual partition by metes and bounds, but only represent an arrangement by way of convenience for more efficient and peaceful management of the family property, and that, alternatively, if those documents are claimed to have the efficacy of partition deeds, they are inadmissible in evidence for want of registration.
The courts below have held that those documents are inadmissible in evidence as regular deeds of partition which they purport to be, in view of the provisions of the Registration Act.
But those transactions have been used for the collateral purpose of showing that from that time, the three brothers became separate in estate, and evidencing the clear intention on the part of each one of them to live as separated members, each with one third share in the paternal estate.
In this connection, reliance was placed on behalf of the appellants ' upon what was alleged to be the subsequent conduct of the three brothers after 1892, as evidenced by the three mortgage bonds themselves and the saledeed exhibit D 54 dated June 17, 1909.
By the last named document, Sadashiv purported to sell to Fulchand Kasturchand, son of the original mortgagee, practically the whole of the mortgaged properties, for a sum of Rs. 1,500.
The recitals in the sale deed would certainly make it out that the three brothers were joint in estate, and that the sale deed was being executed to pay off the personal loans of Gundi and Rama during the Years 1900 to 1903, plus the loans taken by the vendor himself.
Finally, the deed proceeds to make the following very significant declaration as to the status of the members of the so called joint family: "As I have sold to you my right, title and interest in the above said lands, neither I nor my heirs and 493 executors of my will have any right whatsoever over the said property.
As I am the male heir in the joint family by survivorship nobody except me has any interest in the aforesaid lands.
I have sold to you whatever interest I had in the said, lands.
" It was further contended that even strangers to the family treated the brothers as joint in estate as shown by the execution proceedings and the sale certificates of the years 1903 to 1907, whereby Sadashiv was substituted as the sole heir and legal representative of the defendant Gundi, in the suit for money which resulted in the, auction sale referred to above, of the ear 1907.
If the transaction of the year 1892, is admissible in evidence, for the purpose for which the document was used in the courts below, namely, to prove separation in estate, there is no room for ambiguity, and the position is clear that the three brothers had become separate.
Further recitals in those documents that specific portions of the ancestral property had been allotted to the three brothers separately, being in the nature of a partition deed by the father in his life time, and being unregistered, are inadmissible in evidence to prove such a partition.
But the plaintiff 's case does not depend upon proof of actual partition by metes and bounds.
In the absence of any ambiguity, the later transactions would not be relevant except to show that there was a subsequent reunion amongst the brothers, which is no party 's case.
But it was argued on behalf of the appellants that those documents exhibits P series aforesaid are not admissible in evidence even for the limited purpose of showing separation in estate.
The question, therefore, is whether those documents " purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property", within the meaning of section 17(1) (b) of the Registration Act.
No authority has been cited before us in support of this contention.
Partition in the 63 494 Mitakshara sense may be only a severance of the joint status of the members of the coparcenary, that is to say, what was ' once a joint title, has become a divided title though there has been no division of any properties by metes and bounds.
Partition may also mean what ordinarily is understood by partition amongst co sharers who may not be members of a Hindu coparcenary.
For partition in the former sense, it is not necessary that all the members of the joint family should agree, because it is a matter of individual volition.
If a coparcener expresses his individual intention in unequivocal language to separate himself from the rest of the family, that effects a partition, so far as he is concerned, from the rest of the family.
By this process, what was a joint tenancy, has been converted into a tenancy in common.
For partition in the latter sense of allotting specific properties or parcels to individual coparceners, agreement amongst all the coparceners is absolutely necessary.
Such a partition may be effected orally, but if the parties reduce the transaction to a formal document which is intended to be the evidence of the partition, it has the effect of declaring the exclusive title of the coparcener to whom a particular property is allotted by partition, and is, thus, within the mischief of section 17(1) (b), the material portion of which has been quoted above.
But partition in the former sense of defining the shares only without specific allotments of property, has no reference to immovable property.
Such a transaction only affects the status of the member or the members who have separated themselves from the rest of the coparcenary.
The change of status from a joint member of a coparcenary to a separated member having a defined share in the ancestral property, may be effected orally or it may be brought about by a document.
If the document does not evidence any partition by metes and bounds, that is to say, the partition in the latter sense, it does not come within the purview of section 17(1) (b), because so long as there has been no partition in that sense, the interest of the separated member continues to extend over the whole joint property as before.
Such a transaction 495 does not purport or operate to do any of the things referred to in that section.
Hence, in so far as the documents referred to above are evidence of partition only in the former sense, they are not compulsorily registrable under section 17, and would, therefore, not come within the mischief of section 49 which prohibits the reception into evidence of any document " affecting immoveable property ".
It must, therefore, be held that those documents have rightly been received in evidence for that limited purpose.
Lastly, it was contended that if those documents of the year 1892 are admissible to prove separation amongst the three brothers, then, oil the death of one of the three, namely, Rama, and of their mother, the entire ancestral properties including the mortgaged properties, vested in the two brothers in equal shares.
Both by the auction purchase of the year 1906 (D 57 D) and the sale deed (exhibit D 54 of the year 1909), Sadashiv 's moiety share in the mortgaged property, was purchased by Fulchand aforesaid.
The plaintiff, therefore, could only claim the other moiety share of her father, Gundi.
In our opinion, there is no answer to this contention because it is clear upon a proper construction of the three mortgage bonds and on the plaintiff 's own case that the entire ancestral properties and not only Gundi 's share, had been mortgaged.
The appeal will, therefore, be allowed to the extent of the half share rightly belonging to Sadashiv, and the decree for possession after redemption will be confined to the other half belonging to the plaintiff 's father.
In the result, the appeal is allowed to the extent indicated above.
As success between the parties, has been divided, they are directed to bear their own costs throughout.
Appeal allowed in part.

dataset_name: IN-Abs

summary/full:
This was an appeal by the defendants in a suit for possession on redemption of certain mortgages instituted in the Court of the Special judge exercising jurisdiction under the Sangli State Agriculturists Protection Act (1 of 1936).
Their case was that the mortgaged properties had been sold at auction and purchased by their father who had sold most of them to other persons more than 12 years before the institution of the suit and as such the suit was barred by limitation.
The trial Court dismissed the suit.
On appeal the High Court of Sangli permitted the plaintiff to amend the plaint originally filed so as to include the relief for redemption and remanded the suit.
The trial court, thereafter, decreed the suit in part, holding that the claim in respect of portions only of the mortgaged properties was barred by limitation.
Both the parties appealed to the High Court of Bombay and the appeals were heard together.
The High Court dismissed the defendant 's appeal and allowed the plaintiff 's appeal holding that article 148 and not article I34 Of the Limitation Act applied.
In the result, the plaintiff 's suit was decreed in its entirety.
Held, that the preliminary objection that the Special judge had no jurisdiction under the Sangli State Agriculturists Protection Act to entertain the suit must be overruled.
The fixing of ,915 as the date line by the Act had reference to such reliefs as could be had only by way of reopening of closed transactions and could not, therefore, preclude the Special Judge from granting other reliefs in respect of transactions entered into prior to 1915.
Nor could it be contended in bar that the plaintiff was bound in the first instance to set aside an auction sale of the mortgaged properties in execution of a money decree in which she was not substituted in place of her deceased father as his true heir and legal representative nor made a party and no controversy was raised by the parties nor decided by the Court as to who was the true legal representative.
The plaintiff was entitled to ignore the sale and the suit was not barred under article 12 of the Limi tation Act.
480 Malkarjun Bin Shidramappa Pasare vs Narhari Bin Shivappa, (1900) L.R. 27 I.A. 216, doubted and distinguished.
In order that article I34 of the Limitation Act might be attracted to a suit for possession on redemption, it was necessary for the defendant to prove affirmatively that the mortgagee or his succesor in interest had transferred a larger interest than was justified by the mortgage.
Where, as in the present case, this was not done, article 134 could not apply and the only other article which could apply was article 148 Of the Limitation Act.
Under the Mitakshara School of Hindu Law partition may be either (1) a severance of the joint status of the coparcenary by mere defining of shares but without specific allotments or (2) partition by allotment of specific properties by metes and bounds according to shares.
The latter, if reduced to writing becomes compulsorily registrable under section I7(1)(b) of the Indian Registration Act but the former does not.
Consequently, in the present case such unregistered docu ments as were adduced by the plaintiff for the limited purpose of proving partition in the former sense did not fall within the mischief Of section 49 of the Indian Registration Act and were admissible in evidence.


judgement:
tions (C) Nos.
331 47 of 1984.
(Under Article 32 of the Constitution of India. ) Rajinder Sachar and K.T. Anantharaman for the Petitioners.
Narayan B. Shetty, G.B. Pai, S.S. Shroff, Mrs. P.S. Shroff, Miss Girja Krishan, S.A. Shroff, Mrs. Pallavi Shroff, O.C. Mathur and A.M. Dittia for the Respondents.
The Judgment of the Court was delivered by 365 DUTT, J.
In these writ petitions, the petitioners are former officers and employees of the Caltex Oil Refining (India) Ltd., which has since been amalgamated with the Hindustan Petroleum Corporation Limited.
The complaint of the petitioners is with regard to the inter se fitment of the officers and employees of the Caltex Oil Refining (India) Ltd. and the other two Companies which have also been amalgamated with Hindustan Petroleum Corporation Ltd., namely, ESSO Standard Refining Company of India Ltd. and Lube India Ltd. In 1974, the Undertakings in India of ESSO Eastern Inc. that is, ESSO Standard Refining Company of India Ltd. (for short 'ESSO ') and Lube India Ltd. (for short 'LIL ') were acquired by the ESSO (Acquisition of Undertakings in India) Act, 1974 and vested in Hindustan Petroleum Corporation Ltd. (for short 'HPCL '), a Government Company.
In 1977, the shares of Caltex Oil Refining (India) Ltd. and Undertakings in India of Caltex (India) Ltd. were acquired by the Caltex (Acquisition of Shares of Caltex Oil Refining (India) Ltd. and the Undertakings in India of Caltex (India) Ltd. Act, 1977 and vested in Caltex Oil Refining (India) Ltd. (for short 'CORIL '), a Government Company.
On May 5, 1978, by the order of the Company Law Board, CORIL was amalgamated with HPCL.
By an order dated June 17, 1978, the Central Government appointed a one man Committee of Mr. B.B. Tandon, IAS (Retd.), for the purpose of examining the problems arising out the the integration of the management staff of CORIL and HPCL.
The said Committee was to make recommendation inter alia on the following: (i) fitment in equivalent Groups; (ii) criteria to be adopted for determination of seniori ty and fixation of inter se seniority; and (iii) placement in appropriate positions.
In September, 1970, the Tandon Committee submitted a report to the Central Government recommending that for equating positions in the two companies and fitting them in equivalent groups, the following two principles should be followed: 1.
The principle of functional similarity 2.
The principle of co equal responsibility.
366 We shall have occasion to refer to the report of the Tandon Committee later in this judgment, for much reliance has been placed by the petitioners on the report.
While the report of the Tandon Committee was under the consideration of the Central Government, HPCL appointed two functional directors for the purpose of formulating a rationalisation scheme.
In this connection, we may refer to a letter dated July 28, 1979 of the Central Government whereby it advised HPCL that the pay scales and perquisites of management and employees in the nationalised oil companies should be ratio nalised and fitted into the pay scales of the Indian Oil Corporation, hereinafter referred to as 'IOC ', a public sector Company.
Further, it was stated in the said letter that the guiding principle to be adopted for the purpose was to find out the equivalence, that is to say, the equality of duty and also the equality of responsibility.
On July 7, 1980, a circular letter was issued by HPCL annexing thereto a rationalisation scheme consisting of two pans.
In the first part, the past service benefits that would be admissible to each employee of CORIL on the basis of existing pay scales and in the second pan, details were given of the rationalised conditions of service, payscales, perquisites and retirement benefits.
In the circular it was stated as follows: "In relation to your fitment or fixation of salary in the proposed rationa lised scales, should you have any grievance you will be at liberty to represent your case to a Grievance Committee, which has been specially constituted for the purpose.
I am directed to request you to signify your acceptance of this offer within 30 days from the date of receipt of this letter by returning the duplicate copy of this letter duly signed by you.
On receipt of your acceptance, consequent letters will be issued.
" In the scheme the pay scales of ESSO, LIL and CORIL sought to be equated with the pay scales of HPCL are as follows: From ESSO To : HPCL HPCL Salary Group Salary Group Salary Scale RS.
E 7, E 8 A 750 40 1150 50 1550 E 6 B 1050 50 1450 60 1750 367 E 5, E 5A C 1450 60 1690 65 1950 E 4 D 1600 65 2120 E 3 E 1850 100 2350 E 2 F 2000 100 2500 O & E 1 & Unclassified G 2250 100 2750 General Manager H 2500 100 3000 From : LIL To : HPCL HPCL Salary Group Salary Group Salary Scale L 7 A 750 40 1150 50 1550 L 6 B 1050 50 1450 60 1750 L 5 C 1450 60 1690 65 1950 L 4 D 1600 65 2120 L 3 E 1850 100 2350 L 2 F 2000 100 2350 L 1 G 2250 100 2750 General Manager H 2500 100 3000 From CORIL To : HPCL HPCL Salary Group Salary Group Salary Scale R 6 A, R 6 B A 759 40 1150 50 1550 R 7 A, R 7 B B 1050 50 1450 60 1750 R 8 C 1450 60 1690 65 1950 R 9 D 1600 65 2 120 R 10 E 1850 100 2350 R R 12 G 2250 100 2750 General Manager H 2500 100 3000 So far as CORIL is concerned, it appears that it has 10 grades, while HPCL has 8 Grades.
For, the purpose of equa tion of these 10 grades of CORIL with 8 Grades of HPCL, some compression has been made in the lower Grades, namely, R6 A and R6 B have been clubbed together and equated with Grade A of HPCL.
Again Grades R7 A and R7 B of CORIL have been clubbed together and equated with Grade B of HPCL.
In ESSO, .the
Grades E 7 and E 8 have been clubbed together and equated with Grade A of HPCL.
In the Salary Group of ESSO, the Grades E 5 and E SA have been shown to be two different Grades, but it is not disputed before us that these two Grades are really one Grade.
368 The complaint of the petitioners is that in the matter of fitment/ integration of the officers of CORIL, that is, the petitioners, and the officers of ESSO/LIL into HPCL/IOC Grades, gross disparities have been made to the prejudice of the officers of CORIL.
It is the case of the petitioners that the officers of CORIL have been fitted by HPCL consist ently in one or two Grades lower in HPCL vis a vis their counterparts in ESSO/LIL, performing similar duties and having similar responsibilities and status.
It is urged on behalf of CORIL that in integrating the officers CORIL with those of ESSO and LIL, HPCL did not make any attempt to equate all the positions held by the officers of CORIL with those held by the officers of ESSO/LIL.
It is submitted that before any fitment can be made into any scale of pay, it is incumbent to make an equation of posts and without such equation the officers of CORIL could not be fitted into the pay scales of HPCL along with the officers of ESSO and LIL.
In support of the contention that HPCL has not made any equation of posts before fitment in HPCL/IOC scales of pay, Mr. Sachar, learned Counsel appearing on behalf of the petitioners, has placed much reliance on the Tandon Commit tee 's Report.
In the said report, the post of General Sales Representative of ESSO has been equated with the post of Retail Development Supervisor of CORIL.
In the scheme pre pared by HPCL, the post of General Sales Representative of ESSO (E 6) and that of Depot Superintendent (E 6) have been placed in the Salary Group B of HPCL, while the post of Retail Development Supervisor (R6 A) and Depot Superintend ent/Relief Depot Superintendent (R6 B) of CORIL have been placed in the Salary Group A of HPCL.
In Tandon Committee 's Report, it has been observed that the functional similari ties and the responsibility carried by both these function aries, namely, Retail Development Supervisor of CORIL and General Sales Representative of ESSO, are alike.
Further, it has been observed that since these two posts are congruent, they can be fitted in the same Group, that is, in Group B of the new HPCL Grade Structure representing IOC scales of pay.
The post of Depot Super intendent A (R7 B) and that of Mar keting Representative (R7 A) of CORIL have been placed in the Salary Group B of HPCL, but similar posts of ESSO being E 5/E 5A have been placed in the Salary Group C of HPCL.
It is thus complained that the scheme, which has been prepared by HPCL, is arbitrary and is not based on a proper equation of posts.
On the other hand, it is the case of HPCL that before the rationalisation scheme was finalised.
HPCL Employees Management 369 Staff Association and CORIL Staff Association submitted their written submissions on December 6, 1977 and July 17, 1977 respectively.
These representations were considered by the Government and after several meetings between the Chief Executives of HPCL and CORIL and the Secretary and other senior officers of the Ministry and Bureau of Public Enter prise, Government formulated the guidelines for rationalisa tion and communicated its decision to both CORIL and HPCL by its letter dated July 28, 1979.
With a view to giving a further opportunity to the employees of erstwhile ESSO and CORIL group of officers, the Chairman of HPCL appointed two Committees to submit their recommendations as to the equiva lence and fitment of existing officers on the basis of IOC 's scales of pay in accordance with the Government guidelines.
HPCL considered the reports submitted by the said two Com mittees and also different methods of fitment and equiva lence of different pay scales of ESSO, LIL and CORIL with the pay scales of IOC and, keeping in view all these factors including the submissions made by the Officers ' Association through their representations, HPCL approved the proposal of rationalisation of pay scales, allowances and perquisites.
Accordingly, an offer letter dated July 7, 1980 together with the terms and conditions of new appointment as per the rationalisation scheme was sent to each of the employees.
The further case of HPCL is that without exception every one of the CORIL Management Employees accepted the fresh terms offered to them by the said letter dated July 7, 1980.
It is, accordingly, contended by Mr. Pai, learned Coun sel appearing on behalf of HPCL, that the impugned rational isation scheme having been finalised after repeated consul tations with the officers of CORIL and their Association and all the officers of CORIL having accepted in writing the said scheme, they are precluded from challenging the same.
Another fact, upon which reliance has been placed on behalf of HPCL, is an order of this Court dated December 17, 1979 passed in Civil Appeal No. 3214 of 1979 whereby HPCL challenged the judgment of the Delhi High Court quashing a circular dated March 8, 1978 issued by the Board of Direc tors of CORIL, on the writ petition filed by the employees of CORIL being Writ Petition No. 426 of 1978.
Two other appeals being Civil Appeal No. 3212 of 1979 and Civil Appeal No. 35 186 of 1979 were also filed by the officers of CORIL and Bharat Petroleum Corporation Ltd. respectively.
The said order is as follows: "The petitioner Corporation will be at liberty to frame a 370 scheme, if it wishes to do so, in accordance with the judg ment of the High Court under appeal.
If the scheme is framed, it will not be implemented for a period of three weeks from the date of its framing and the respondents will be at liberty within the period of 3 weeks to apply to this Court for stay.
This order will be without prejudice to the rights and contentions of the petitioner Corporation in the appeal.
" Admittedly, no application was made to this Court by the officers of CORIL praying for stay of the rationalisation scheme within a period of three weeks.
Relying on the said order of this Court and also on the fact that no application for stay was made to this Court within the period allowed, it is submitted on behalf of HPCL that the petitioners accepted the rationalisation scheme which is also evidenced by their written acceptance.
If they had any objection to the scheme, they would have surely made a representation to this Court in the said Civil Appeal No. 3214 of 1979 which was then pending.
In the writ petition, the petitioners have emphatically denied the allegation of HPCL that discussions were made with individuals and groups of Management Staff of CORIL with regard to the rationalisation scheme.
As to the accept ance of the rationalisation scheme, the case of the peti tioners is that on July 12, 1980 a news item appeared in the Bombay edition of the Times of India to the effect that under the scheme of rationalisation, the services of nearly 950 officers of HPCL would be terminated, and that such officers would simultaneously be reappointed on the basis of public sector salary.
In view of the said news, the peti tioners filed an application in this Court in the said Civil Appeals praying for stay or suspension of the operation of the said offer letter dated July 7, 1980 and for restraining HPCL from terminating the services of the Management Staff of CORIL pending the disposal of the Civil Appeals.
HPCL filed an affidavit in opposition to the said application of the petitioners to the effect that no decision had been taken by HPCL to terminate the services of the officers of CORIL.
Accordingly, this Court disposed of the said applica tion recording that in view of the said affidavit of HPCL, no order was needed to be passed.
Further, the case of the petitioners is that in spite of the said order of this Court, the petitioners still apprehended that HPCL would terminate the services of the petitioners in the event of their refusal to accept the said scheme and, as such, the petitioners under duress were forced to signify their con sent to the said scheme.
371 We have considered the explanation of the petitioner justifying the acceptance of the said offer letter dated July 7, 1988 and the rationalisation scheme sent therewith and also the contention of HPCL in that regard.
In our opinion, the apprehension of the petitioners that in the event of their refusal to accept the scheme, their services will be terminated cannot be rejected on the face of it.
It may be that there was no reasonable basis for such apprehen sion, but the plea that because of such apprehension the petitioners had no other alternative than to accept the scheme, cannot be disbelieved.
At the same time, we do not also put any blame on HPCL for implementing the said scheme which was accepted by the petitioners and other officers of CORIL.
Instead of disposing of these writ petitions on this technical grounds, we may proceed to consider the respective contentions of the parties on merits.
The main grievance of the petitioners appears to be that in the rationalisation scheme a compression has been made at the lower level, namely, Grades R6 A and R6 B have been clubbed together and instead of placing them in the Salary Group B of HPCL, as has been done for the equivalent Grade E 6 of ESSO, they have been placed in the Salary Group A of HPCL.
Similarly, the Grades R7 A and R7 B have been clubbed together and placed in Salary Group B of HPCL, while the equivalent Grade of ESSO has been placed in the Salary Group C of HPCL.
The contention of the petitioners is that the compres sion should have been made at the higher grades, namely, Grades R11 and R12 and the Grade of General Manager.
This is not for this Court to say whether the compression should have been made in the lower grades or in the higher grades.
By such compression, Grades R6 A and R7 A have been upgraded and the persons placed in those Grades have been benefited by such upgradation.
There is much substance in the conten tion made on behalf of HPCL that if compression had been made in the upper grades, there would be much complications and, moreover, such compression in the upper grades was not convenient to be made in view of functional differences.
The Grade of General Manager cannot be clubbed together with a lower grade.
In the circumstances, we are unable to accept the contention of the petitioners that the compression should have been made in the higher grades of CORIL.
The most important question that requires consideration is whether in framing the rationalisation scheme HPCL has really made the equation of posts of CORIL with those of ESSO/LIL.
It is the 372 positive case of the petitioners that no such equation has been made and the fitment of the officers of CORIL and those of ESSO/LIL in the IOC/HPCL scales of pay have been made without the equation of posts, which is a sine qua non for integration of officers coming from different sources.
The petitioners have mainly relied upon the recommendation of the Tandon Committee that General Sales Representative of ESSO has been equated with the post of Retail Development Supervisor of CORIL.
In the scheme prepared by HPCL, the post of General Sales Representative of ESSO and that of Depot Superintendent have been placed in the Salary Group B of HPCL, while the post of Retail Development Supervisor and Depot Superintendent/Relief Depot Superintendent of CORIL have been placed in the Salary Group A of HPCL.
As against this, the contention of HPCL is that the two Committees that were appointed by the Chairman of HPCL considered the different methods of fitment and equivalence of different pay scales of ESSO, LIL and CORIL with the pay scales of IOC.
Except the bare allegation, no material has been produced before us on behalf of HPCL to show that the said Committees had, as a matter of fact, considered the question of equation of posts on the basis of the principle as laid down by the Central Government while referring the matter to the Tandon Committee, namely, functional similari ty and co equal responsibility.
In the affidavits filed on behalf of HPCL, no particulars have been given with regard to the functional equivalence or otherwise of the different grades of these officers of CORIL, ESSO and LIL.
It is also not stated what happened to the consideration by the Govern ment of the Tandon Committee 's report.
There can be no doubt that the Government is not bound to accept the recommenda tion of the Tandon Committee but, at the same time, the equation of posts has to be made on the principle of func tional equivalence and co equal responsibility.
As no mate rials have been produced in that regard on behalf of HPCL, it is difficult for us to hold that the different grades of posts have been compared before placing the officers of these companies in the IOC/HPCL scales of pay.
While it is not within the domain of the Court to make the equation of posts for the purpose of integration, it is surely the concern of the Court to see that before the integration is made and consequent fitment of officers in different grades/scales of pay is effected, there must be an equation of different posts in accordance with the principle stated above.
As there is no evidence or material in support of such equation of posts, it is difficult to accept the ra tionalisation scheme with regard to the placing of the officers of CORIL in different IOC/HPCL grades of pay.
373 The petitioners approached the Grievance Committee, but the Grievance Committee did not consider the objections of the petitioners to the said scheme.
In our opinion, there is much substance in the contention made on behalf of HPCL that it was not the business of the Grievance Committee to con sider the propriety or otherwise of the rationalisation scheme, but if any officer has not been placed in the proper grade, the Grievance Committee may place such officer in the proper grade in accordance with the rationalisation scheme.
Be that as it may, in the view which we take, namely, that there has been no equation of posts, the rationalisa tion scheme cannot be accepted in full.
The prayer of the petitioners in the writ petition is for a declaration that the said scheme is violative of Articles 14 and 16 of the Constitution of India and for a writ, order or direction in the nature of mandamus directing HPCL to remove the discrim ination against the petitioners in regard to the impugned rationalisation scheme.
The question is whether we should set aside the scheme after the lapse of about eight years.
During these eight years, by virtue of implementation of the scheme, many changes have taken place with regard to the positions and ranks of the officers of HPCL including the petitioners and to set aside the whole scheme at this stage would surely affect the service structure of HPCL.
We are also not obliv ious of the order of this Court dated July 20, 1984 record ing the statement made in the affidavit of HPCL that if this Court would ultimately decide the matter in favour of the petitioners, HPCL would accord to them all the benefits which they would be entitled to.
That is an undertaking given by HPCL, but we should also look to the interest of several officers of HPCL who would be affected, if the scheme is set aside.
In the circumstances, without setting aside the scheme, we direct HPCL to appoint a Committee consisting of high officials of HPCL and Central Government, other than those who were in the previous Committees, within one month from date for the purpose of considering the question of equation of posts on the basis of functional similarity, equivalence and co equal responsibility, that is to say, whether on that basis Grades R6 A and R6 B of CORIL, either jointly or separately, can be equated with the Grade E 6 of ESSO and, similarly, Grades R7 A and R7 B of CORIL, either jointly or separately, can be equated with Grade E 5/E 5A of ESSO.
In considering the question of equation of posts, the respond ents shall also take into its consideration the report of the Tandon Committee.
Such consideration shall be 374 made within six months from today.
If such equation is found to be in favour of the petitioners, HPCL shall give effect to the same.
But, in view of the lapse of about eight years for which the petitioners are also to some extent responsi ble, the date or dates from which the consequential benefit will be given effect to and also the quantum of such benefit will be such as may be deemed fit and proper by the respond ents, having regard to the financial involvement and the changes that have taken place.
We make it clear that, in no event, promotions and the existing positions of the officers of HPCL, by virtue of the implementation of the impugned scheme, will be interfered with.
The writ petitions are disposed of as above.
There will be no order as to costs.
P.S.S Petitions allowed.

summary/full:
ESSO Standard Refining Company of India Ltd. and Lube India Ltd. were acquired by the ESSO (Acquisition of Under takings in India) Act, 1974 and vested in the Hindustan Petroleum Corporation Ltd.
In 1978 Caltex Oil Refining India Ltd., another Government company was amalgamated with HPCL.
Consequent upon this integration of management staff of CORIL and HPCL, dispute arose as to their fitment in equiva lent groups and fixation of inter se seniority.
The Tandon Committee appointed to examine the issues recommended the application of the principles of (1) functional similarity, and (2) co equal responsibility, for equating positions in the two companies.
The HPCL appointed two functional direc tors for framing a rationalisation scheme.
In the said scheme for the purpose of equation of 10 grades of CORIL with 8 grades of HPCL some compression was made in the lower grades, namely, R6 A and R6 B of CORIL were clubbed together and equated with grade A of HPCL.
Again, grade R7 A and R7 B were clubbed together and equated with grade B of HPCL.
The complaint of the petitioners, former officers and employees of CORIL, was that the rationalisation scheme was arbitrary, in that the fitment of officers of CORIL and those of the ESSO/LIL in the HPCL scales of pay had been made without the equation of posts, which was a sine qua non for integration of officers coming from different sources, so much so that they had been consistantly fitted in one or two grades lower in HPCL vis a vis their counterparts in ESSO/LIL performing similar duties and having similar re sponsibilities and status; that in the Tandon Committee report, the post of General Sales Representative of ESSO had been equated with the post of Retail Development Supervisor of CORIL on the principle of functional similarity and co equal responsibility; that since these two posts were con gruent, they should have been fitted in the same group, that is, in Group B of the new HPCL 363 Grade structure, whereas in the said scheme the post of General Sales Representative of ESSO (E 6) and that of Depot Superintendent (E 6) have been placed in the Salary Group B of HPCL, while the post of Retail Development Supervisor (R6 A) and Depot Superintendent/ Relief Depot Superintendent (R6 B) of CORIL have been placed in Salary Group A of HPCL.
It is further averred that the post of Depot Super intend ent A (R7 B) and that of Marketing Representative (RT A) of CORIL have been placed in the Salary Group B of HPCL, but similar posts of ESSO being E 5/E5A have been placed in Salary Group C of HPCL; that the compression should have been made at the higher grades namely, grades R 11 and 12 and the grade of General Manager, and that the petitioners were forced to signify their consent to the said scheme under duress.
They, therefore, prayed for a declaration that the said scheme was violative of Articles 14 and 16 of the Constitution of India.
For the respondents, it was contended that the two committees that were appointed by the Chairman of HPCL considered the different methods of fitment and equivalence of different pay scales of ESSO, LIL and CORIL with the pay scales of IOC, that the reports submitted by these two committees were considered by the HPCL along with the sub missions made by the officers ' association through their representations before approval, that the terms and condi tions of the new appointments as per the rationalisation scheme were circulated to each of the CORIL employees with its letter dated July 7, 1980 and they having accepted in writing the said scheme they were precluded from challenging the same.
Allowing the writ petitions, HELD: 1.
While it is not within the domain of the Court to make the equation of posts for the purpose of integra tion, it is surely the concern of the Court to see that before the integration is made and consequent fitment of officers in different grades/scales of pay is effected, there must be an equation of different posts in accordance with the principle Of functional equivalence and co equal responsibility.
[372G H] In the instant case, no evidence or material has been placed before the Court on behalf of the HPCL in support of such equation of posts.
The rationalisation scheme with regard to the placing of the officers of CORIL in different IOC/HPCL grades of pay, therefore, cannot be accepted in full.
[372H] 364 2.
This is not for the Court to say whether the compres sion should have been made in the lower grades or in the higher grades.
By such compression, grades R6 A and R7 A have been upgraded and the persons placed in those grades have been benefitted.
If compression had been made in the upper grades there would have been much complications in view of the functional differences, for the grade of General Manager cannot be clubbed together with a lower grade.
The contention that the compression should have been made in the higher grades of CORIL cannot, therefore, be accepted.
[371F G] 3.
The apprehension of the petitioners that in the event of their refusal to accept the scheme, their services will be terminated cannot be rejected.
It may be that there was no reasonable basis for such apprehension, but the plea that because of such apprehension the petitioners had no other alternative than to accept the scheme, cannot be disbe lieved.
[371B] 4.
Having regard to the interest of several officers of HPCL who would be affected if the scheme is set aside, and in view of the fact that during the eight years in which the scheme had been in operation many changes had taken place with regard to the positions and ranks of the officers of HPCL including petitioners, HPCL is directed to appoint a committee consisting of high officials of HPCL and Central Government, other than those who were in the previous com mittees, within one month for the purpose of considering the question of equation of posts on the basis of functional similarity, equivalence and co equal responsibility, and to give effect to the same.
Promotions and the existing posi tions of the officers of HPCL by virtue of the implementa tion of the impugned scheme, not to be interfered with.
[373D, F G; 374B]