judgement:
ivil Appeal No. 4756 of 1989.
From the Judgment and Order dated 6.9.1985 of the Madhya Pradesh High Court in Civil Misc.
Petition No. 465 of 1984.
S.K. Agnihotri for the Appellant.
S.K. Gambhir for the Respondent.
The Judgment of the Court was delivered by K.N. SINGH, J.
Special leave granted.
This appeal is directed against the order of the High Court of Madhya Pradesh, Jabalpur, Gwalior Bench dated 6.9.1985 quashing the State Government 's order dated 21.8.1984 pre maturely retiring the respondent from service.
The respondent was holding the post of Deputy Director of Geology and Mining in the State of Madhya Pradesh.
The State Government constituted a committee for screening the service roll of its employees for considering the question of compulsory retirement on attaining the age of 35 years.
The Screening Committee which 250 included Shri S.S. Dave, Director of Geology and Mining Department of the Government of Madhya Pradesh, on examining the service records of the respondent made recommendation to the Government for his pre mature retirement.
Pursuant to the Screening Committee 's recommendation the State Govern ment by its order dated 21.8.1984 retired the respondent compulsorily from service under Rule 56 of the Fundamental Rules.
The respondent challenged the validity of the State Government 's order by means of a writ petition under Article 226 of the Constitution before the High Court (Gwalior Bench).
The High Court quashed the State Government 's order on the finding that the participation of Shri S.S. Dave in the deliberation of the Screening Committee vitiated its recommendation and also consequently order of the State Government on the doctrine of bias.
The High Court further held that since Shri S.S. Dave had on an earlier occasion awarded adverse remarks against the respondent he was biased in law and therefore he was disqualified to be a member of the Screening Committee and his participation in the Screen ing Committee rendered his recommendation invalid.
The High Court placed reliance on the decision of this Court in A.K. Kraipak & Ors. etc.
vs Union of India, After hearing learned counsel for the parties at length we are of the opinion that this appeal must succeed.
The object and purpose of Fundamental Rule 56 conferring power on the Government to prematurely terminate the service of a Government servant is to ensure efficiency in the adminis tration by weeding out dead wood officials who may have outlived their utility as observed by this Court in J.N. Sinha vs Union of India, [1971] 1 SCR 791.
While exercising this power the State Government constituted a high powered Committee consisting of senior officials of the State Gov ernment and S.S. Dave being the Head of Department of Geolo gy and Mining was a member of the Screening Committee.
As Head of Department he was the best person to assess the efficiency and utility of employees working in the Depart ment of Geology and Mining.
His presence in the Committee was necessary to have a fair and correct assessment of the work and conduct of the employees of that Department for the purposes of making recommendations to the Government.
While it is true that as Head of Department he had awarded adverse remarks to the respondent on an earlier occasion but that does not mean that he had any malice against the respondent, in fact no malice had been pleaded by the respondent against S.S. Dave.
As Head of Department Dave had performed his duty in recording his opinion in the respondent 's character roll as no other person was entitled under the rules to adjudge his work and 251 conduct.
No doubt bias and malice both vitiate decision of an authority.
But by no stretch of imagination Dave could be held to have been biased against the respondent merely because on an earlier occasion he had in the performance of his duties awarded an adverse remark to the respondent.
The High Court committed serious error in holding that malice in law was writ large on the face of the proceedings of the Screening Committee, although no malice in fact had been pleaded against him.
In coming to that conclusion the High Court placed reliance of Kraipak 's case.
As a member of the Screening Committee Shri Dave was performing duty as signed to him under the rules and Government order for screening records of the officers.
He had no personal inter est in the matter and there was no conflict between his personal interest and his duties as member of the Screening Committee, therefore there could not be any question of bias or malice in law.
In Kraipak 's case an officer who was himself a candidate for selection was a member of the selec tion committee and selection was held to be vitiated on the ground that there was a conflict between that officer 's personal interest and his duties as he was judge of his own cause.
The principles laid down in Kraipak 's case do not apply to the facts of the instant case.
We are therefore of the opinion that Dave 's presence in the Screening Committee did not vitiate the recommendation made by the Committee in any manner, consequently the State Government 's order could not be quashed.
The High Court had no valid reason to hold that the Screening Committee was not properly constituted and that its recommendations were unconstitutional.
We accordingly allow the appeal, set aside the order of the High Court, and dismiss the respondent 's writ petition but we make no order as to costs.
Although we have upheld the State Government 's order but we would like to observe that since the respondent had been reinstated in service after the High Court order and he has now retired from service on attaining the age of superannua tion, the State Government should not take any steps for reducing his pension by treating him to have retired with effect from 21.8.1984.
P.S.S. Appeal allowed.

summary/full:
The respondent was sought to be retired compulsorily from service by an order dated August 21, 1984 on attaining the age of 55 years under Rule 56 of the Fundamental Rules, pursuant to the Screening Committee 's recommendation.
He challenged the said order in a writ petition under Article 226 of the Constitution.
The High Court quashed the said order on the finding that the participation of the Head of the Department in the deliberation of the Screening Committee had vitiated its recommendation, and order of the State Government on the doctrine of bias, since he had on an earlier occasion award ed adverse remarks against the respondent.
Allowing the appeal by special leave, the Court, HELD: 1. 'The presence of Head of Department in the Screening Committee did not vitiate its recommendation.
Consequently the State Government 's order could not be quashed.
[251E] 2.1 The object and purpose of Fundamental Rules 56 conferring power on the Government to prematurely terminate the service of a Government servant is to ensure efficiency in the administration by weeding out dead wood who may have outlived their utility.
In the instant case, while exercis ing this power the State Government had constituted a high powered Screening Committee consisting of senior officials of the State Government and the Head of the Department.
[250D F] 2.2 The Head of Department bad performed his duty in recording _ opinion in the respondent 's character roll as no other person was entitled under the rules to adjudge re spondent 's work and conduct.
As 249 a member of the Screening Committee he was performing duty assigned to him under the rules and Government order for screening records of the officers.
He was the best person to assess the efficiency and utility of employees working in his department.
He had no personal interest in the matter and there was no conflict between his personal interest and his duties as member of the Screening Committee.
Therefore, there could not be any question of bias or malice in law.
[250H, 251C, 250F] J.N. Sinha vs Union of India, [1971] 1 SCR 791, referred to.
A.K. Kraipak & Ors.
vs Union of India, , distinguished.
Since the respondent had been reinstated in service after the High Court order and he has now retired from service on attaining the age of superannuation, the State Government should not take any steps for reducing his pen sion by treating him to have retired with effect from August 21, 1984, [251F G]


judgement:
vil Appeal Nos.
18083 of 1985.
From the Judgment and Order dated 12.9.1983 of the Rajasthan High Court in D.B. (Civil) Spl.
Appeal Nos.
35 of 1982, 76, 268 and 270 of 1983.
S.K. Bagga for the Appellants.
B.D. Sharma for the Respondents.
The Order of the Court was delivered by 247 VENKATARAMIAH, CJ.
In these appeals the appellants have questioned the validity of Section 15 (as amended) of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973.
It is not disputed that this Act was enacted by the Rajasthan Legislature for bringing about Agrarian Re forms in the State of Rajasthan.
The validity of some of the provisions of the Act came up for consideration before this Court in Bansidhar vs State of Rajasthan, ; before a Constitution Bench of this Court and this Court made declaration that the Rajasthan Imposition of Ceiling Agricultural Holdings Act, 1973 was a legislation which was made for the purpose of bringing out Agrarian Reform.
In view of the above finding, it is clear that the provisions including section 15 (as amended) contained therein are protected by Article 31(A)(1)(a) of the Constitution notwithstanding the fact that some of these provisions contravened Articles 14 and 19.
The Grounds urged in respect of the appeal are that Section 15 (as amended) in question was violative of Article 14.
Since the provisions of the Act as already stated are protected by Article 31(A)(1)(a), the attack does not sur vive.
The High Court was therefore right in upholding the validity of Section 15 of the Act.
Therefore, there is no ground to interfere with the Judgment of the High Court.
These appeals fail and are dismissed.
Interim orders passed if any, in these cases stand vacated.
T.N.A. Appeals dis missed.

dataset_name: IN-Abs

summary/full:
In these appeals on the question: whether section 15 (as amended) of the Rajasthan Imposition of Ceiling on Agricul tural Holdings Act, 1973 was violative of Article 14 of the Constitution of India.
Dismissing the appeals, this Court, HELD: Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 was a legislation which was made for the purpose of bringing about agrarian reforms.
The provisions of the Act including section 15 (as amended) are protected by Article 31(A)(1)(a) of the Constitution.
Therefore, the attack that section 15 of the Act was violative of Article 14 of the Constitution does not survive.
The High Court was right in upholding the validity of section 15 of the Act.
[247B; C D] Bansidhar vs State of Rajasthan, ; , followed.


judgement:
vil Appeal Nos.
8068 10 of 1986.
From the Judgment and Order dated 16.3.1985 of the Punjab & Haryana High Court in Civil W.P. No. 2050 2054 of 1984.
M.S. Gujral and Prem Malhotra for the Appellants.
Kapil Sibal, M.R. Sharma, S.K. Mehta, Vinod Mehta, Atul Nanda and M.K. Dua for the Respondents.
The Judgment of the Court was delivered by V. RAMASWAMI, J.
One Bishan Das who is the father of respondents 2 to 5 and another by name Muhari Ram whose legal representative are respondents 6 and 7, owned consid erable extent of 212 land in Pakistan.
He died on April 11, 1948 after he migrat ed to India.
After his death the Rehabilitation Department allotted 124 standard acres and 4 1/4 unit of evacuee land on 26th August, 1949.
The five sons of Bishan Das were treated as entitled to this land as heirs and successors of the displaced person and accordingly mutation was allowed by the rehabilitation authorities on February 17, 1953 in favour of the five sons showing each of them entitled to 24 standard acres and 13 units of land.
Permanent rights in regard to this allotted land were also conferred by the authorities under the provisions of the said Displaced Persons (Compensation and Rehabilitation) Act in the names of the sons of Bishan Das on January 2, 1956.
These lands were in the occupation of different tenants against whom the five brothers initiated ejectment proceedings by filing applications under section 9(1)(i) of Punjab Security of Land Tenures Act, 1953 (hereinafter called 'the Act ') for ejectment on the ground that each of them is a "small land owner" as defined in Section 2(2) of the Act and that they required the land for self cultivation.
The Assistant Col lector, Hissat rejected the application.
The owners ' appeals were dismissed by the Collector on January 4, 1965.
Their revision also was rejected by the Commissioner of Ambala Division on October 26, 1965.
Their further revision to the Financial Commissioner also met with the same fate on May 17, 1966.
Thereafter the land owners moved the High Court by a writ petition under Article 226 and 227 of the Constitu tion on the ground that the land had been allotted to them in lieu of the land owned by their father Bishan Das in Pakistan and consequently the permissible area of each of them is to be computed under the proviso to Section 2(3) of the Act and so computed the holding of each of the five were well below the permissible limit of 30 standard acres pre scribed thereunder.
The writ petition was dismissed but the L.P. Appeals filed against the same came up for considera tion before a full Bench of the High Court of Punjab and Haryana.
The High Court held that in view of the explanation to the proviso the heirs and successors of the displaced persons to whom land were allotted could not claim the benefit of the proviso and that the permissible area under the substantive part of section 2(3) is 60 ordinary acres.
The decision of the full Bench is reported in 1967 Punjab Law Reporter 913.
Against this decision the respondent land owners preferred appeals to this Court.
By a judgment dated December 15, 1978 in Munshi Ram & Ors '.
vs Financial Commissioner, Haryana & Ors.
, ; this Court confirmed the view of the full Bench.
However, this Court accepted and argument on behalf of the land owners that in computing the permissible area of each of the land owners the uncultivated area of 'banjar jadid ', 'banjar kadim ' and 'gair mumkin ' lands as on April 213 15, 1953 could not be included.
As the authorities under the Act had illegally and wrongfully included these types of uncultivated lands orders of the various authorities were set aside and the case was remanded to the Collector con cerned of Hissar District with a direction that he should ascertain the extent of the 'banjar jadid ', 'banjar kadim ' and 'gair mumkin ' of the land owners allottees at the rele vant date, namely, April 15, 1953 and recompute their per missible area after excluding such land.
It is now ascer tained that so computed each of the land owners were holding at the relevant date less than 60 acres.
When these proceed ings were pending simultaneously applications filed by the tenants under section 18 of the Act for purchase of the surplus area were also being considered by the various authorities.
When that matter came up before the Financial Commissioner, Haryana, in surplus area cases after noting the judgment of the Full Bench of the High Court in the land owners case, the Financial Commissioner set aside the orders of the Collector and remanded the tenants cases for purchase of surplus land with a direction that the Collector must decide the case of surplus area after allowing the permissible 60 acres to the land owners.
Thereafter.
the Collector took up consideration of the surplus area cases in the light of the remand order.
However, by his Order dated February 2, 1978 the Collector held that the land owners should include in the permissible area all the 'banjar ' lands which have since been brought under cultivation and accordingly directed the land owners to produce the list of permissible area.
On appeal by the land owners the Financial Commissioner remanded the cases to Collector with a direc tion that he must decide the cases after excluding all 'banjar lands '.
The tenants filed petitions against this Order to the Financial Commissioner.
By the time these cases came up for orders the Supreme Court had decided the land owners eviction cases on December 15, 1978 (supra).
There fore, the revision petitions were dismissed.
However, the Collector was asked to determine the permissible area with reference to relevant date, viz., April 15, 1953.
By his Order dated May 6, 1982 the Collector determined the area held by each of the land owners, after excluding the 'ban jar ' lands as less than the permissible area and that, therefore, no area owned by them could be declared surplus and accordingly dismissed the purchase application filed by the tenants.
The Commissioner by his order dated April 18, 1983 confirmed this decision of the Collector.
The tenants went in revision before the Financial Commissioner.
It was again argued before the Financial Commissioner that he should not have allowed the 'banjar ' area to be excluded from their holding since they had subsequently been brought under cultivation.
The Financial Commissioner agreed with the land 214 owners that 'banjar ' lands could not be treated as 'lands ' for the purpose of computing the permissible area, that the relevant date for purpose of determining the permissible area is April 15, 1953 and in that view dismissed the pur chase applications filed by the tenants.
The tenants having failed in the writ petition filed by them questioning the dismissal of their purchase applications, have filed these five appeals.
The main contention of Mr. Gujral, learned counsel for the petitioner in these cases was that in determining the question whether a person is a small land owner for the purpose of the Act the entire land owned by him whether cultivated or not cultivated and whether it is 'banjar ' or any other land shall be taken into account.
If the total extent of the land so calculated is above the permissible area, then unless the land owner has made the reservation as contemplated in sections 3, 4, 5 and 5A, he incurs the penalty under section 5C and the 'permissible area ' will be reduced to 10 standard acres and then again he cannot also choose these 10 standard acres but the tenants would have the option to purchase any land of the land owner including the land under the personal cultivation of the land owner, leaving only 10 standard acres.
The point in this form was never raised before and, therefore, the learned counsel for the respondent objected to the counsel raising it for the first time in this Court.
But since it is a question of law and the facts were not in dispute we have permitted the counsel to raise this point.
It is not in dispute that the land owners had not made any reservation under sections 3, 4 and 5 originally nor did they make it after section 5A was introduced, though their lands were situated in more than one Patwar Circle within section 5A.
However, the stand taken by the land owners was that they were small landowners having less than 60 acres and, therefore, they were not obliged to make any reserva tion and section 5C would not be attracted at all.
The following proposition have been settled by the decisions of this Court in Bhagwan Das vs State of Punjab,[1966] 2 SCR 510 and MunshiRam vs Financial Commis sioner, Haryana, (supra).
The relevant date for determining the permissible area and the surplus area is April 15, 1953 the date on which the Punjab Security of Land Tenures Act, 1953 came into force and not the date on which the eviction application was filed.
If a person is a small land owner at the commencement of the Act, his status is not altered by reason of improvements in the value of his land or re allotment of land on compul sory consolidation of holdings.
215 3.
Banjar Kadim, Banjar Jadid and Gair Mumkin cannot be taken into account while computing the permissible area and surplus area under the Act.
Banjar Kadim and Banjar Jadid do not fall within the purview of the definition of 'land ' under the Act as they are not being occupied or let for agricultural purposes or purposes subservient to agriculture.
Permissible area under the substantive part of section 2(3) for a person who is not a displaced person is sixty ordinary acres.
The concept of standard acre being a meas ure of area convertible into ordinary acres of any class land according to prescribed scales with reference to the quantity of the yield and quality of the soil, has been introduced in the definition of permissible area to emphasise the qualitative aspect of a land holding and the maximum limit of sixty acres its quantitative aspect.
Section 2(2) of the Act defining small land owner reads as follows: "Small land owner means land owner whose entire land in the State of Punjab does not exceed the 'permissible area '.
Explanation In computing the area held by any particular land owner the entire land owned by him in the State of Punjab, as entered in the record of rights, shall be taken into account, and if he is a joint owner only his share shall be taken into account.
" The learned counsel for the appellant wanted us to understand and interpret the words "entire land" with refer ence to the definition of the word 'land ' in section 2(8) and that sub clause reads as follows: " 'Land ' and all other terms used, but not defined in this Act, shall have the same meaning as are assigned to them in the Punjab Tenancy Act, 1887 (XVI of 1887).
' Section 4(1) of the Punjab Tenancy Act, 1887 defines land as follows: 216 " 'Land ' means land which is not occupied as the site of any building in a town or village and is occupied or has been let for agricul tural purposes or for purposes subservient to agriculture, or for pasture, and includes the sites of buildings and other structures on such land".
This Court had held in Munshi Ram vs Financial Commissioner, (supra) that banjar kadim and banjar jadid do not fall within the purview of definition of land under the Act as they are not being occupied or let for agricultural purposes or for purposes subservient to agriculture.
It necessarily follows that in calculating the total extent held by a person on the date of the Act for purposes of determining whether a person is a small land owner, these banjar lands cannot be taken into account.
We are also not impressed with the argument that a land owner shall make a reservation under the Act in all cases irrespective of whether he is a small land owner or not.
Section 3 of the Act speaks of a small land owner who by virtue of an allotment made after the commencement of the Act under the "comes to hold more than the permissible area of the land".
The section enables and provides that in such a case the small landowner may select out of the entire area held by him as a land owner land not exceeding the permissible area and reserve it for himself.
The section thus implies that as a small land owner he was not obliged to make any reserva tion.
But when by reason of allotment made subsequently under the he "comes to hold more than the permissible area", he was given an option to select out of the entire land, land to the extent of permissible area and to reserve to himself, again emphasising that holding more than the permissible area as a necessary requirement to oblige a landowner to make a selection or reservation.
Section 4 deals with the case where the person was not a small land owner but has made a reservation under the original 1950 Act which was repealed and replaced by the 1953 Act.
This provision ena bles him to make a fresh selection and reservation if his allotment under the had been modified or revised since his earlier reserva tion.
Section 5 of the Act provides: "Any reservation before the commencement of this Act, shall cease to have effect and subject to the provisions of sections 3 and 4 any land owner who owns land in excess of the permissible area may reserve out of the entire land held 217 by him in the State of Punjab as land owner, any parcel or parcels not exceeding the per missible area by intimating his selection in the prescribed form and manner to the patwari of the estate in which the land reserved is situate or to such other authority as may be prescribed." This again requires only a land owner who owns land in excess of the permissible area to make a fresh selection and reservation to an extent not exceeding the permissible area.
Section 5A also deals with a case where a land owner holding in excess of the permissible area but it is with reference to a land owner who has land situate in more than one patwar circle.
Section 5B authorised a land owner who was holding lands in excess of the permissible area but has not previ ously exercised the right of reservation, to select and reserve the permissible area for his own purposes within the extended period mentioned in that section.
The need to make a reservation would thus arise only when the land owner on the relevant date held land in excess of the permissible area.
This Court in Gurbux Singh vs State of Punjab, AIR 1964 SC 502 accepted that: "The main purpose of the Act seems to be to: (i) provided a 'permissible area ' of 30 stand ard seems to a land owner/tenant, which he can retain for self cultivation; (ii) provide security of tenure to tenants by reducing their liability to ejectment as specified in section 9; (iii) ascertain surplus areas and ensure re settlement of ejected tenants on those areas; (iv) fix maximum rent payable by tenants, and (v) confer fights on tenants to pre empt and purchase their tenancies in certain circum stances.
" Thus the Act is also intended to place a ceiling on holding of land by fixing a maximum area permissible to be held by a land owner.
In other words the excess over the permissible area shall be available as surplus area to be dealt with under the provisions of the Act.
Then again section 9(1)(i) of the Act dealing with the liability of a tenant for 218 eviction states that "tenants on the area reserved under this Act or is a tenant of a small land owner" is liable for eviction.
If in every case irrespective of whether the person is a small land owner or not he had to make a reser vation then the later portion of this clause referring to a tenant of small land owner was absolutely not necessary.
The right of reservation given to a person who holds land in excess of the permissible area is, among others, to give him an option to select that land which he would like to retain for himself and avoid one of the consequences of enabling the tenant to choose under section 18 of the Act any land including that which is under the personal cultivation of the land owner.
It may be mentioned that section 18 of the Act itself specifically provides that the right to purchase is available to a tenant only against a land owner "other than a small land owner".
In our view, therefore, it is not necessary and the Act does not make it obligatory, on pain of consequences provided under section 5C, for a small land owner to make a reservation under sections 3, 4, 5, 5A or 5B.
It was then contended by the learned counsel for the appellant that an area of 0.33 ordinary acres had been excluded in determining total extent held by the land owner on the ground that area was under old tenants and that it should not have been excluded.
This point was not raised at any stage.
No facts relating to this area is available on record and, therefore, we cannot permit the counsel to raise this point for the first time in this Court.
In the result the appeals fail and they are dismissed.
However, the parties will bear their respective costs in all the appeals in this Court.
Y. Lal Appeals dis missed.

summary/full:
These appeals are by tenants against the land owners.
One Bishan Das owned considerable extent of land in Pakistan.
He died on April 11, 1948 after he had migrated to India.
After his death the Rehabilitation Department allot ted 124 standard acres and 4 I/4 units of evacuee land to Respondents Nos. 2 to 5 his sons and to Nos. 6 & 7 who were the legal heirs of one his deceased son.
Each of the five sons was deemed entitled to 24 standard acres and 13 units of land and accordingly mutuation in respect of each of them was allowed by the Rehabilitation Department.
Permanent rights in regard to the allotted land were also conferred by the authorities on the said respondents.
Thereupon the said respondents land owners initiated ejectment proceedings under sec.
9(1)(i) of the Punjab Security of Land Tenures Act, 1953 against the tenants who were then in occupation of the Lands in question on the ground that each one of them was a small land owner as defined in Section 2(2) of the Act and that they required the land for self cultivation.
The Assistant Collector, Hissar rejected the application.
Their appeals were dismissed by the Collector on 4.4.1965.
Their revision preferred before the Commissioner, Ambala Division was also rejected.
Land owners ' further revision to Finan cial Commissioner also failed whereupon they filed a Writ Petition before the High Court on the ground that the land had been allotted to them in lieu of the land owned by their father in Pakistan and consequently the permissible area of each of them was to be computed under the proviso to section 2(3) of the Act, and so computed the holding of each of the five was well below the permissible limit of 30 standard acres prescribed thereunder.
The High Court dismissed the Writ petition.
Respondents preferred Letters Patent Appeals wherein the High Court held that in view of the Explanation to the proviso to section 2(3), the heirs and successors of the displaced persons to whom lands were allotted could not claim the benefit of the proviso and that the permissi 210 ble area under the substantive part of section 2(3) was 60 ordinary acres, The respondents preferred appeals to this Court.
This Court confirmed the view of the High Court.
However this Court accepted an argument advanced on behalf of the re spondents land owners that in computing the permissible area of each of the land owner, the uncultivated area of "banjar Jadid", "banjar Kadim" and "gair Mumkin" lands as on April 15, 1953 could not be included.
As the authorities had wrongly included these types of lands, their orders were set aside and the case was remanded to the Collector concerned with a direction that should ascertain the extent of "banjar Jadid", "banjar Kadim" and "gair mumkin" lands of the Re spondents allotted as on 15.4.1953.
When these proceedings were pending, applications filed by the appellants tenants under section 18 of the Act for purchase of surplus area also came to be considered by the authorities.
When the matter came up before the Financial Commissioner he set aside the orders of the Collector and remanded the appel lants tenants cases for purchase of surplus land with a direction that the Collector must decide the cases of sur plus area after allowing the permissible 60 acres to the land owners.
In a subsequent proceedings, the Financial Commissioner directed the Collector to determine the permis sible area after excluding all "banjar lands".
The tenants filed Petitions before the Financial Commissioner against the order.
However by the time these cases came up for orders, this Court had decided the land owners ' eviction cases viz in Munshi Ram & Ors.
vs Financial Commissioner.
Haryana & Ors., ; As such the revision Petitions were dismissed and the Collector was asked to determine the permissible area with reference to relevant date viz., April 15, 1953.
By his order dated 6.5.82 the Collector accordingly determined the area held by each of the land owner after excluding the "banjar lands", as less than the permissible area and found that no area owned by them could be declared surplus and on that footing dismissed the purchase applications filed by the appellantstenants.
Their Petitions having been dismissed by the Authorities under the Act, they fried Writ Petitions questioning the dismissal of their purchase applications.
The High Court having dismissed the Writ Petitions, they have filed these appeals.
Dismissing the appeals, this Court, HELD: The Punjab Security Land Tenures Act 1953 is intended to 211 place a ceiling on holding of land by fixing a maximum area permissible to be held by a land owner.
In other words the excess over the permissible area shall be available as surplus area to be dealt with under the provisions of the said Act.
[217H] In calculating the total extent held by a person on the date of the Act for purposes of determining whether a person is small land owner, the banjar lands cannot be taken into account.
[216C] The need to make a reservation would arise only when the land owner on the relevant date held land in excess of the permissible area.
[217C] The right of reservation given to a person who holds land in excess of the permissible area is, among others to give him an option to select that land which he would like to retain for himself and avoid one of the consequences of enabling the tenant to choose under section 18 of the Act any land including that which is under the personal cultiva tion of the land owner.
[218B] It is not necessary and the Act does not make it obliga tory, on pain of consequences provided under section 5C, for a small land owner to make a reservation under sections 3, 4, 5, 5A or 5B. [218C] Bhagwan Das vs State of Punjab, ; Gurbux Singh vs State of Punjab, AIR 1964 SC 502, referred to.


judgement:
ivil Appeal No. 1945 of 1974.
From the Judgment and decree dated 9.10.1973 of the Madras High Court in L.P.A. No. 78 of 1969.
section Padmanabhan, K.M.M. Khan and Vineet Kumar for the Appellant.
Vepa Sarathy and Ramesh N. Keshwani for the Respondents.
The Judgment of the Court was delivered by M. FATHIMA BEEVI, J.
1.
This is an appeal by special leave against the judgment and decree dated the 9th October, 1973 of the High Court of Judicature at Madras in Letters Patent Appeal No. 78 of 1969.
The appellant was the first defendant in O.S. No. 53 of 1959 in the Munsiff 's Court Chingleput.
The respondents are the legal representatives of Munisubba Reddi, the plain tiff therein.
That suit was instituted on 11.2.1959 for recovery of possession of the suit property with mesne profits.
The suit was decreed by the trial court on 7.11.1960.
The first appellate court by the revised judgment dated the 5th August, 1961 in A.S. No. 21 of 1961 reversed the decree.
The second appeal preferred by the plaintiff was dismissed by the High Court in S.A. No. 426 of 1965 on 31.1.1969.
However, the Division Bench of the High Court allowed the Letters Patent Appeal filed by the plaintiff.
It is necessary to set out few facts for the purpose of this appeal.
The suit property having an extent of 13 acres and 42 1/2 cents originally belonged to one Dasu Reddi.
He conveyed possession of the land to one Varada Reddi under an oral agreement of sale on 10.7.1946.
A deed of sale was drawn up on 17.7.1947, but Dasu Reddi died before it could be registered.
Thereafter his sons Rajaram Reddi 196 and Ramalinga Reddi executed exhibit A. 1 sale deed in favour of Munisubba Reddi on 6.10.1949.
Varada Reddi, aggrieved, instituted O.S. No. 78 of 1949 against Munisubba Reddi and his vendors for specific performance of the contract for sale, asserting his possession in pursuance of the agreement dated 10.7.1946.
Varada Reddi died pending the suit.
Mu thukrishna Reddi was impleaded as his legal representative.
That suit was decreed in his favour on 13.12.1952.
The decree became final, but was not executed.
In the present suit the plaintiff Munisubba Reddi alleged that he was put in possession of the land by Mu thukrishna Reddi after the said decree under an arrangement evidenced by exhibit A.4 dated 12.12.1955 and while in posses sion, the defendants Achal Reddi and others trespassed into the property in 1956.
Achal Reddi contested the suit denying the petitioner 's title and the alleged trespass and claiming that Muthukrishna Reddy had orally transferred his rights and conveyed possession to him for valuable consideration.
The trial court in granting the petitioner a decree for possession found that the plaintiff 's title under the sale deed of 1949 as against his vendors was made perfect and title did not pass to Muthukrishna Reddi as he did not choose to execute the decree and the petitioner was in possession within 12 years prior to the suit.
It was found that the first defendant Achal Reddi has no title to the suit property and that he is not in possession of the same.
The first appellate court by the judgment dated 5.8.1964 rendered after the remand considered the question of title as well as possession and held: "If Muthukrishna Reddi had enforced the decree in O.S. No. 76/1949 for specific performance against the plaintiff and his vendors, that would have put an end to the title of the plaintiff under exhibit A. 1.
As already stated, the decree was allowed to lapse leaving the title of the plaintiff under exhibit A. 1 unaf fected.
The title that vested in the plaintiff on 6.6.1949 continued to remain with him thereafter for the above reasons.
As against this, the defence contention that the 1st defendant under an oral agreement, became the owner of the properties cannot stand.
My finding, therefore, is that the plaintiff has title to the properties under exhibit A.1." The learned Judge, however, found that the plaintiff was not in possession of the suit land in 1955 and the plaintiff having neither 197 proved possession nor dispossession at anytime was not entitled to a decree.
In S.A. No. 426 of 1965 these concurrent findings of the trial court as well as the first appellate court on the question of plaintiff 's title had not been challenged.
The only question raised therein and considered by the learned Single Judge was whether the plaintiff was in possession within 12 years of suit in order to enable him to recover possession and whether for that purpose he could say that his vendors and before him, Dasu Reddi were in possession of the property and consequently he could add that period to the period before 6.6.1949, the date of sale in his favour.
The learned Judge was of the view that if Varada Reddi 's possession was permissive, then the possession should be deemed to have continued with the original owner Dasu Reddi and thereafter his sons, but if on the other hand the pos session of Varada Reddi was adverse even as against the original owner, the plaintiff would not be entitled to add the period before 6.6.1949 and such possession could not enure to his benefit.
After referring to the decision in Annamalai Chettiar and Another vs Muthiah Chettiar and Another, ILR 19651 Madras 254 the learned Judge held that Varada Reddi 's possession was adverse to Dasu Reddi from 10.7.1946, on the assumption that a sale had been effected orally even on 10.7.1946 leaving only execution of the sale deed to be done later.
This assumption of the learned Single Judge was found to be faulty by the Division Bench.
The Division Bench noticed that all that the plain tiff has to prove is that he or his predecessor in title was in possession at any time between 11.2.1947 and 11.2.1959.
If between 11.2.1947 and 17.7.1947 the possession of Varada Reddi was possession held on behalf of Dasu Reddi then it could be held that the plaintiff 's predecessor in title had been in possession within 12 years prior to the suit.
The Division Bench held that the transaction of 10.7.1946 was in fact and in law only an oral agreement for sale and that on the assumption that it was an oral sale the learned Single Judge failed to apply the legal position as enunciated in Annamalai vs Muthiah, (Supra).
They observed that possession as held by Varada Reddi subsequent to 10.7.1946 and before he instituted the suit in 1949 for specific performance was in the consciousness that it was only possession on behalf of the real owner.
Even if the execution of an infructuous sale deed on 17.7.1947 by Dasu Reddi in favour of Varada Reddi is assumed to have altered the complexion of events in any manner, the possession by Varada Reddi from 1.7.1946 upto 17.7.1947 at least was clearly possession held on behalf 198 of Dasu Reddi, the predecessor in title of the plaintiff.
If the plaintiff 's predecessor had been in possession of the suit property on 17.7.1947, that is to say within 12 years prior to the institution of the present suit on 11.2.1959, there can be little doubt that the plaintiff must succeed on the question of possession as well.
In this view the judg ment of the learned Single Judge was reversed.
There is no controversy that the plaintiff has to establish subsisting title by proving possession within 12 years prior to the suit when the plaintiff alleged dispos session while in possession of the suit property.
The first appellate court as well as the second appellate court pro ceeded on the basis that the plaintiff is not entitled to succeed as such possession has not been proved.
The concur rent findings that the plaintiff had title inspite of the decree for specific performance obtained against him, when that decree had not been executed are not assailed by the appellant in the High Court.
The appellant cannot, there fore, urge before us on the basis of the findings in the earlier suit to which he was not a party that exhibit A. 1 sale deed is one without consideration and does not confer valid title on the plaintiff.
The sole question that has been considered by the High Court is that of subsisting title.
We have to consider whether the question of law as to the character of the possession Varada Reddi had between 10.7.1946 and 17.7.1947 is adverse or only permissive.
In the case of an agreement of sale the party who obtains possession, acknowledges title of the vendor even though the agreement of sale may be invalid.
It is an acknowledgement and recognition of the title of the vendor which excludes the theory of adverse possession.
The well settled rule of law is that if person is in actual possession and has a right to possession under a title involving a due recogni tion of the owner 's title his possession will not be regard ed as adverse in law, even though he claims under another title having regard to the well recognised policy of law that possession is never considered adverse if it is refera ble to a lawful title.
The purchaser who got toto possession under an executory contract of sale in a permissible charac ter cannot be heard to contend that his possession was adverse.
In the conception of adverse possession there is an essential and basic difference between a case in which the other party is put in possession of property by an outright transfer, both parties stipulating for a total divestiture of all the rights of the transferor in the property, and in case in which, there is a mere executory agreement of trans fer both parties contemplating a deed of transfer to be executed at a later point of time.
In the latter case the principle of estoppel applies estopping the transferee from contending that his possession, while the contract remained executory in stage, 199 was in his own right and adversely against the transferor.
Adverse possession implies that it commenced in wrong and is maintained against right.
When the commencement and continu ance of possession is legal and proper, referable to a contract, it cannot be adverse.
In the case of an executory contract of sale where the transferee is put in possession of the property in pursuance of the agreement of sale and where the parties contemplate the execution of a regular registered sale deed the animus of the purchaser throughout is that he is in possession of the property belonging to the vendor and that the former 's title has to be perfected by a duly executed registered deed of sale under which the vendor has to pass on and convey his title.
The purchaser 's possession in such cases is of a derivative character and in clear recognition of and in acknowledgement of the title of the vendor.
The position is different in the case where in pursuance Of an oral transfer or a deed of transfer not registered the owner of a property transfers the property and puts the transferee in possession with the clear animus and on the distinct understanding that from that time onwards he shall have no right of title to the property.
In such a case the owner of the property does not retain any vestige of right in regard to the property and his mental attitude towards the property is that it has ceased to belong to him altogether.
The transferee after getting into possession retains the same with the clean animus that he has become the absolute owner of the property and in complete negation of any right or title of the transferor, his enjoyment is solely as owner in his right and not derivatively or in recognition of the title of any person.
So far as the vendor is concerned both in mind and actual conduct, there is a total divestiture of all his right, title and interest in the property.
This applies only in a case where there is a clear manifestation of the intention of the owner to divest himself of the right over the property.
On the other hand in the case of an executory contract the possession of the transferee until the date of registration of the conveyance is permissive or derivative and in law is deemed to be on behalf of the owner himself.
The correctness of the decision in Annamalai vs Muthiah (supra) cannot, therefore, be doubted.
The parties are concluded by the finding of the Division Bench that the transaction of 10.7.1946 between Dasu Reddi and Varada Reddi is only an agreement for sale and not an oral sale of the property.
If that be so the possession of Varada Reddi in pursuance of such an agreement of sale and in the expectation that there would be a com plete divestiture of all the rights of the owner in his favour on execution of a regular sale deed, until the execu tion of the sale deed, 200 was only possession on behalf of Dasu Reddi.
Such possession having been within a period of 12 years prior to the present suit, the plaintiff succeeds in having established the possession of his predecessor ininterest within 12 years prior to the date of the suit.
The plaintiff is, therefore, entitled to a decree in his favour.
The decision of the Letters Patent Bench of the High Court is correct and we confirm the same.
The appeal is accordingly dismissed with costs.
G.N. Appeal dismissed.

summary/full:
A, the owner of the land in question, conveyed posses sion of it to B under an oral agreement of sale.
A deed was drawn up within about a week, but before it could be regis tered, A died and his sons executed a sale deed in respect of the land, in favour of C. Aggrieved, B instituted a suit against C and A 's sons for specific performance.
B died during the pendency of the suit and his son D was impleaded as his legal representative.
The suit was decreed in favour of D.
Though the decree became final, it was not executed.
C filed a suit alleging that he was put in possession by D and that E and others trespassed into the property.
E contested the suit on the ground that D had orally trans ferred his rights and conveyed possession to him for valu able consideration.
The Trial Court decreed the suit.
On appeal, the first appellate court held that C was not enti tled to a decree.
On appeal to the High Court, the Learned Single Judge held that B 's possession was adverse to A on the assumption that a sale had been effected orally leaving only execution of the sale deed to be done later and so, C would not be entitled to add the period before the sale in his favour on 6.6.49 for the purpose of calculating the period of posses sion for 12 years, prior to the suit, and that such posses sion could not enure to his benefit under the .
However, the concurrent findings of the Trial Court and the first Appellate Court on the question of C 's title had not been challenged.
The Division Bench reversed the above judgment holding that the Learned Single Judge failed to apply the correct legal position on the assumption that the transaction of 10.7.46 was only an oral sale.
This appeal by special leave has been filed by E against the judgment of the Division Bench.
194 Dismissing the appeal, this Court, HELD: 1.
If a person is in actual possession and has a right to possession under a title involving a due recogni tion of the owner 's title his possession will not be regard ed as adverse in law, even though he claims under another title having regard to the well recognised policy of law that possession is never considered adverse if it is refera ble to a lawful title.
The purchaser who got into possession under an executory contract of sale in a permissible charac ter cannot contend that his possession was adverse.
Adverse possession implies that it commenced in wrong and is main tained against right.
When the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be adverse.
[198F G; 199A] 2.1 In the case of an executory contract of sale where the transferee is put in possession of the property in pursuance of the agreement of sale and where the parties contemplate the execution of a regular registered sale deed and animus of the purchaser throughout is that he is in possession of the property belonging to the vendor and that the former 's title has to be perfected by a duly executed registered deed of sale under which the vendor has to pass on and convey his title.
The purchaser 's possession in such cases is of a derivative character and in clear recognition of and in acknowledgement of the title of the vendor.
The position is different in the case where in pursuance of an oral transfer or a deed of transfer not registered the owner of a property transfers the property and puts the transferee in possession with the clear animus and on the distinct understanding that from that time onwards he shall have no right of title to the property.
In such a case the owner of the property does not retain any vestige of right in regard to the property and his mental attitude towards the property is that it has ceased to belong to him altogether.
The transferee after getting into possession retains the same with the clear animus that he has become the absolute owner of the property and in complete negation of any right or title of the transferor, his enjoyment is solely as owner in his right and not derivatively or in recognition of the title of any person.
So far as the vendor is concerned both in mind and actual conduct, there is a total divestiture of all his right, title and interest in the property.
This applies only in a case where there is a clear manifestation of the intention of the owner to divest himself of the right over the property.
On the other hand in the case of an executory contract the possession of the transferee until the date of registration of the conveyance is permissible or derivative and in law is deemed to be on behalf of the owner himself.
[199B F] 195 2.2 In the instant case, the parties are concluded by the finding of the Division Bench that the transaction of 10.7.46 was only an agreement for sale and not an oral sale of the property.
[199G] Annamalai Chettiar and Another vs Muthiah Chettiar and Another, ILR 19651 Madras 254 approved.


judgement:
ivil Appeal No. 2967 of 1986.
From the Judgment and Order dated 28.7.1986 of the Allahabad High Court in W.P. No. 1793 of 1980.
Satish Chandra, R.B. Mehrotra, S.K. Mehta, Atul Nanda and Aman Vachher for the Appellant.
J.M. Khanna, R.B. Misra and Ms. Anil Katiyar for the Respondents.
The Judgment of the Court was delivered by SINGH, J.
This appeal is directed against the judgment and order of the High Court of Allahabad dated July 28, 1986 dismissing the appellant 's petition under Article 226 of the Constitution challenging the order of the Commissioner Varanasi Division dated February 13, 1980 setting aside the order of Municipal Board, Jaunpur appointing the appellant as Tax Inspector.
The Municipal Board, Jaunpur issued advertisement invit ing applications for appointment to the post of Tax Inspec tor.
The advertisement stated that the existing employees of the Revenue Department of the Municipal Board were eligible for consideration along with outsiders.
Hari Mohan Respond ent No. 3 who was the senior most Tax Collector working in the Municipal Board, Jaunpur was called for interview but he refused to appear for the interview on the plea that the post of Tax Inspector should have been exclusively filled by promotion and as he was the seniormost Tax Collector he should be promoted without considering any outsider.
The Municipal Board ignored, his claim and selected the appel lant, and appointed 204 him to the post of the Tax Inspector by the order dated 11.3.78.
Respondent No. 3 thereafter filed a claim petition before the Services Tribunal constituted under the U.P. Public Services Tribunals Act, 1976 but subsequently he withdrew the same on 23.12.79.
Thereafter he filed a repre sentation to the Prescribed Authority i.e. the Commissioner Varanasi challenging appellant 's appointment to the post of Tax Inspector.
The Commissioner by his order dated 13.2.80 set aside the order of the Municipal Board and cancelled the appellant 's appointment on the ground that the Respondent No. 3 was entitled to promotion in pursuance to the direc tions contained in the Government Order dated 10.4.50.
The appellant filed a writ petition under Article 226 of the Constitution before the High Court challenging the order of the Commission.
A learned Single Judge (B.D. Agarwal, J.) of the High Court of Allahabad dismissed the writ petition and affirmed the order of the Commissioner on the findings that the appellant 's appointment was made in violation of the Government Order dated 10.4.50.
Hence this appeal.
After heating learned counsel for the parties at length we are of the opinion that the High Court committed manifest error in upholding the order of the Commissioner.
The basic question which arises for consideration is whether the post of Tax Inspector, under the provision of the U.P. Municipal ities Act, 1916 (hereinafter referred to as the 'Act ') or any rules framed thereunder or under the Government Order dated 10.4.1950 the post of Tax Inspector was required to be filled by promotion only and not by direct recruitment.
The Prescribed Authority i.e., the Commissioner as well as the High Court both proceeded on the assumption that the Govern ment Order dated 10.4.50 had been issued by the State Gov ernment in exercise of its supervisory powers under section 71 of the Act and as such it was binding on the Municipal Board, and the directions contained therein required the Municipal Board to fill up the post of Tax Inspector exclusively by promotion and not by direct recruitment.
In making the appellant 's appointment as a direct recruit, the Municipal Board acted in violation of the directions contained in the aforesaid Government Order, therefore, the appellant 's appointment was rendered illegal.
The High Court upheld the order of the Prescribed Authority on these findings.
Learned counsel for the appellant urged that the directions con tained in the Government Order dated 10.4.50 were ultra vires the State Government 's powers under section 71 of the Act.
He placed reliance on Ramesher Prasad and Other vs Municipal Board, Pilibhit, AIR 1958 All. 363.
The learned counsel further urged that the aforesaid decision was approved by two other learned Judges of the High Court in 205 Ram Kripal Garg vs State of U.P., Writ Petition No. 4556 of 1965 dated 16.9.66 and Inder Bahadur vs Municipal Board, Mirzapur and Others, Writ Petition No. 235 of 1970 dated 20.10.72 holding that the Government Order dated 10.4.50 was ultra vires.
These decisions were placed before the learned Single Judge but he did not agree with the view taken in the aforesaid decisions instead he took a contrary view in holding that the Government Order dated 10.4.50 was valid and it required the Municipal Board to fill up the post of Tax Inspector only by promotion.
It is well settled princi ple of judicial discipline as has been reiterated in a number of decisions of this Court that if a. Single Judge, disagrees with the decision of another Single Judge, it is proper to refer the matter to a larger Bench for an authori tative decision.
But in the instant case the learned Judge acted contrary to the well established principles of judi cial discipline in ignoring those decisions.
Section 71 of the Act before its amendment in 1964 did not confer power on the State Government to issue any direc tion regulating the conditions of service of Municipal employees.
The view taken by the High Court in Ramesher Prasad case and followed in other two cases, is correct.
The High Court placed reliance on the Government Orders dated 27.4.57, 9.12.59 and 30.1.72 in holding that the directions contained in Government Order dated 10.4.50 were binding on the Municipal Board.
We have gone through the aforesaid Government Orders and Notifications but we find nothing therein to clothe the Government Order dated 10.4.50 with statutory character.
A Government Order declared ultra vires by High Court could not be revived by any subsequent Govern ment Order without there being any statutory power for the same.
Moreover the aforesaid Government Orders and Notifica tions do not contain any direction requiring the Municipal Board to fill up the post of Tax Inspector exclusively by promotion.
The High Court committed error in upholding the Commissioner 's order.
We have closely scrutinised the Government Order dated 10.4.50 (Annexure 1 to the petition) with the assistance of the counsel for the parties.
But even after conceding super visory power to the State Government to issue directions laying down conditions of service of Municipal employees, we do not find any directions therein requiring a Municipal Board to fill the post of Tax Inspector only by promotion and not by direct recruitment.
Learned counsel for the respondent placed reliance on paragraphs 5 and 6 of the Government Order in support of his contention that the post of Tax Inspector was required to be filled by promotion only.
Paragraphs 5 and 6 of the Government Order read as under: 206 "5.
In the case of the posts mentioned in the annexure promotions should, as a rule, be made from the lower to the higher posts or grades, as the case may be, in the same class of Service Subject to the general orders con tained in the above paragraphs.
The prevailing practice 'of transferring at random officials in one class of service to another should be stopped.
When direct recruitment to any post speci fied in the annexure had to be made it will be governed by the educational qualifications shown therein.
Recruitments to posts from outside should, however, as far as possible be made by inviting applications through adver tisement in the press and making a selection therefrom preferably be means of a competitive test.
Local Bodies may also be advised to form a Committee consisting of the Chairman or the President, the Executive Officer or the Secre tary, as the case may be, and the principal administrative officer of the department concerned, to make a selection from among the applicants for a vacant post by interviewing the after a competitive test.
The actual appointment will, however, be made by the competent authority.
" In order to ascertain the correct scope of the aforesaid paragraphs it is necessary to refer to the entire content of the Order.
It appears that the U.P. Pay Committee made certain recommendations prescribing minimum qualifications in respect of employees of Local Bodies.
The State Govern ment accepted the recommendations of the Pay Committee by its Resolution dated March 29, 1949 and in pursuance thereof it issued the Government Order dated 10.4.50 prescribing minimum qualifications for the employees of Local Bodies mentioned in the Schedule to the Order which included the post of Tax Inspector.
Paragraph 2 of the Order directed that future vacancies on the promotion post will not ordi narily be given from a lower to higher post unless the officials holding the lower post, possess the requisite educational qualifications prescribed for the higher post.
Paragraph 3 directed that the posts of Head Clerks or Office Superintendent should be filled by promotion only from among the educationally qualified Head Clerks.
It further directed that under no circumstances the posts of Head Clerks or Office Suptdt.
be filled by direct recruitment from outside.
Paragraph 4 directed the Municipal Boards to discontinue the posts of Sectional Head Clerks and to create posts of Office Head Clerks.
Paragraphs 7 and 8 of the Order do not contain any directions 207 with regard to the question of promotion.
Paragraph 5 as quoted earlier directed that promotion as a rule should be made from the lower to the higher post or grade in the same class of service subject to the directions contained in other paragraphs of the Order which means subject to the employee possessing the minimum qualifications prescribed for the higher post and the higher post should not be filled by transferring employees belonging to other class of serv ice.
Paragraph 6 directed that in case of direct recruitment to any post as specified in the annexure of the Order it should be governed by the educational qualifications pre scribed in the Order and recruitment should be made in accordance with the procedure prescribed therein by consti tuting a committee and inviting applications.
Paragraphs 5 and 6 as quoted above do not contain any directions requir ing Municipal Board to fill the post of Tax Inspector exclu sively by promotion.
Though paragraph 3 as already noted directed that under no circumstances the post of Head Clerk or Office Suptdt. should be filled up by the direct recruit ment from outside, no such direction for the post of Tax Inspector was issued, therefore it was open to the Municipal Board to make appointment to the post of Tax Inspector either by direct recruitment or by promotion.
In the instant case, the Municipal Board, Jaunpur gave opportunity to its employees working in the revenue class of service to appear for selection to the post of Tax Inspector in competition with outsiders.
Respondent No. 3 however, did not avail the opportunity for which he himself is to be blamed.
The Municipal Board, in our opinion, acted within its jurisdiction in making appointment to the pOSt Of Tax Inspector by direct recruitment.
The Commissioner, as well as the High Court committed error in taking a contrary view.
Subsequently, the Act was amended and the statutory rules i.e., the U.P. Palika Centralised Service Rules have been framed regulating the conditions of service of Municipal employees and appointment to the post of Tax Inspector is regulated by Statutory Rules.
The High Court committed serious error in upholding the order of the Government dated 13.2.80 in setting aside the appellant 's appointment without giving any notice or oppor tunity to him.
It is an elementary principle of natural justice that no person should be condemned without hearing.
The order of appointment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording opportunity of hearing to him.
Any order passed in violation of principles of natural justice is rendered void.
There is no dispute that the Commissioner 's Order had 208 been passed without affording any opportunity of hearing to the appellant therefore the order was illegal and void.
The High Court committed serious error in upholding the Commis sioner 's Order setting aside the appellant 's appointment.
In this view, Orders of the High Court and the Commissioner are not sustainable in law.
We accordingly, allow the appeal and set aside the Order of the High Court as well as the Commissioner.
There will be no order as to costs.
T.N.A. Appeal allowed.

summary/full:
The Municipal Board, Jaunpur invited applications for the post of Tax Inspector.
The employees working in the Revenue Department of the Municipal Board were eligible for consideration alongwith the outsiders.
Respondent No. 3, the seniormost Tax Collector in Municipal Board, was called for interview but he refused to appear on the plea that the post of Tax Inspector should be exclusively filled by promotion and being the seniormost Tax Collector he should be promoted without considering any outsider.
Ignoring his claim the Municipal Board selected and appointed the appellant to the post of Tax Inspector.
Respondent No. 3 represented to the Commissioner challenging the appellant 's appointment.
The Commissioner set aside the order of the Municipal Board and cancelled the appellant 's appointment holding that pursuant to the directions contained in the Government 's Order dated 10.4.50, Respondent No. 3 was entitled to promotion.
The appellant challenged the Commissioner 's order before the High Court by filing a writ petition.
Disagreeing with the decision of another Single Judge, a Single Judge of the High Court dismissed the writ petition, and affirmed the order of the Commissioner on the findings that the appellant 's ap pointment was made in violation of the Government 's Order dated 10.4.50.
Hence this appeal.
202 Allowing the appeal and setting aside the order of the High Court, this Court, HELD: 1.
The orders of the High Court and the Commis sioner are not sustainable in law.
[208B] 1.1.
It is a well settled principle of judicial disci pline that if a Single Judge disagrees with the decision of another Single Judge, it is proper to refer the matter to a larger Bench for an authoritative decision.
But in the instant case, the learned Single Judge of the High Court acted contrary to the well established principles of judi cial discipline in ignorning those decisions.
[205B C] 2.
Section 71 of the U.P. Municipalities Act, 1916 before its amendment in 1964 did not confer power on the State Government to issue any direction regulating the conditions of service of Municipal employees.
[205D] Ramesher Prasad and Ors.
vs Municipal Board, Pilibhit, A.I.R. 1958 All. 363; Ram Kripal Garg vs State of U.P., Writ Petition No. 4556 of 1965 dated 16.9.66 and Inder Bahadur vs Municipal Board, Mirzapur and Ors.
, Writ petition No. 235 of 1970 dated 20.10.1972 approved.
I Even after conceding supervisory power to the State Government to issue directions laying down conditions of service of Municipal employees, there are no directions in the Government Order dated 10 4 50 requiring a Municipal Board to fill the post of Tax Inspector only by promotion and not by direct recruitment.
Therefore, it was open to the Municipal Board to make appointment to the post of Tax Inspector either by direct recruitment or by promotion.
[205G; 207D] 2.2 In the instant case, the Municipal Board gave oppor tunity to its employees working in the revenue class of service to appear for selection in competition with outsid ers.
Respondent No. 3 however did not avail the opportunity for which he himself is to be blamed.
The Municipal Board acted within its jurisdiction in making appointment to the post of Tax Inspector by direct recruitment.
[207E] 2.3 A Govt.
Order declared ultra vires by the High Court, could not be revived by any subsequent Govt.
Order without there being any statutory power for the same.
[205E] 3.
It is an elementary principle of natural justice that no person 203 should be condemned without hearing.
The order of appoint ment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording an opportunity of hearing to him.
Any order passed in violation of the principles of natural justice is rendered void.
In the instant case, there is no dispute that the Commissioner 's order had been passed with out affording any opportunity of hearing to the appellant.
Therefore the order was illegal and void.
The High Court committed serious error in upholding the Commissioner 's order setting aside the appellant 's appointment without giving any notice or opportunity to him.
[207G H; 208A]


judgement:
iminal Appeal No. 79 of 1956.
Appeal by special leave from the judgment and order dated September 7, 1955, of the Patna High Court in Criminal Appeal No. 370 of 1954, arising out of the judgment and order dated July 26, 1954, of the Court of the Special Judge at Bhagalpur in Special Case No. 14 of 1954.
B. R. L. Iyengar, for appellant No. 1.
section P. Sinha and P. C. Agarwala, for appellant No. 2.
R. C. Prasad, for the respondent.
August 18.
The Judgment of the Court was delivered by SINHA J.
This appeal by special leave is directed against the concurrent judgments and orders of the courts below, convicting the two appellants under section 120B read with section 165A, Indian Penal Code, and sentencing them to rigorous imprisonment for 18 months, and to pay a fine of Rs. 200 each, and in default of payment of fine, to undergo further rigorous imprisonment for 6 months.
A separate conviction under section 165A has been recorded in respect of the first appellant, Badri.
Under this head, he has been sentenced to rigorous imprisonment for 18 months, the sentence to run concurrently with the sentence under the common charge.
The facts as found by the courts below, which could not be successfully challenged before us, areas follows: The second appellant, Ramji Sonar, is a goldsmith by profession and runs a shop on the main road in the village Naogachia.
In that village there is a police station and the shop in question is situated in between the police station building and the residential quarters of the Inspector of police, who was the First Informant in the case, resulting in the conviction and 1143 sentences of the appellants as stated above.
The first appellant, Badri, runs a school for small boys in the same village about 50 yards away from the shop a foresaid of the second appellant.
On August 22,1953, the First Informant, who, holding the position of an Inspector of police, was in charge of the police station, made a seizure of certain ornaments and molten silver from a vacant building in front of the house of the second appellant, Ramji.
Those ornaments were being melted by six strangers coining from distant places, with implements for melting, said to have been supplied by Ramji.
The seizure was made on the suspicion that the ornaments and the molten silver were stolen property, which were to be sold to Ramji in a shape which could not be identified with any stolen property.
After making the seizure list of ' the properties, thus seized, the police officer arrested Ramji, as also the other six strangers.
Ramji was .released on bail that very day.
Police investigations into the case, thus started, followed.
During that period, on August 24, 1953, at about 7 30 p.m., the Inspector was on his way from his residential quarters to the police station, when both the appellants accosted him on the road, and Ramji asked him to hush up the case for a valuable consideration.
The Inspector told them that he could not talk to them on the road, and that they should come to the police station.
Thereafter, the Inspector reported the matter to his superior officer, the D.S.P. (P.W. 8), and to the sub inspector, P.W. 9, attached to the same police station.
On August 31, the same year, the first appellant, Badri, came to the police station,.
saw the Inspector in the central room of the thana, and offered to him a packet wrapped in a piece of old newspaper, containing Rs. 500 in currency notes.
He told the Inspector, (P. W. 1), that the second appellant, Ramji, had sent the money through him in pursuance of the talk that they had with him in the evening of August 24, as a consideration for hushing up the case that was pending against Ramji.
At the time the offer was made, a number of police officers besides a local merchant, (P.W. 7), were present there.
The Inspector at once 1144 drew up the first information report of the offer of the bribe on his own statement and prepared a seizure list of the money, thus offered, and at once arrested Badri and put him in the thana lock up.
After the usual investigation the appellants were placed on their trial, with the result indicated above.
Both the courts below have found that the prosecution case, a summary of which has been given above, has been proved by good and reliable evidence, and that the defence case that the prosecution was started by the inspector out of spite and in order to defend himself against the consequences of wrongfully arresting Ramji, was unfounded.
We are not impressed with the halting criticism of the evidence adduced in this case on behalf of the prosecution and accepted by the courts below.
Ordinarily, this Court does not interfere with concurrent findings of fact.
The only serious question raised in this appeal is the point raised on behalf of the second appellant, Ramji, as to whether the statement made by the first appellant, Badri, on August 31, 1953, that he had been sent by the second appellant with the money to be offered by way of bribe to the police officer, was admissible against him.
The learned counsel for the appellant was not able clearly to formulate his grounds of objection to the admissibility of that piece of evidence, which is the basis of the charge against both the accused persons.
Section 10 of the Indian Evidence Act, is a complete answer to this contention.
The section is in these terms: " 10.
Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. " The incident of August 24, when both the appellants 1145 approached the inspector with the proposal that he should hush up the case against the second appellant, for which he would be amply rewarded, is clear evidence of the two persons having conspired to commit the offence of bribing a public servant in connection with the discharge of his public duties.
There cannot, therefore, be the least doubt that the court had reasonable grounds to believe that the appellants had entered into a conspiracy to commit the offence.
Therefore, the charge under section 120B had been properly framed against both of them.
That being so, anything said or done by any one of the two appellants, with reference to the common intention, namely, the conspiracy to offer bribe, was equally admissible against both of them.
The statement made by the first appellant on August 31, that he had been sent by the second appellant to make the offer of the bribe in order to hush up the case which was then under investigation, is admissible not only against the maker of the statement the first appellant but also against the second appellant, whose agent the former was, in pursuance of the object of the conspiracy.
That statement is admissible not only to prove that the second appellant had constituted the first appellant his agent in the perpetration of the crime, as also to prove the existence of the conspiracy itself.
The incident of August 24, is evidence that the intention to commit the crime had been entertained by both of them on or before that date.
Anything said or done or written by any one of the two conspirators on and after that date until the object of the conspiracy had been accomplished, is evidence against both of them.
It was faintly suggested on behalf of the second appellant, that the charge under section 120B of the Indian Penal Code, had been deliberately added by the prosecution in order to make the first appellant 's statement of August 31, admissible against the second appellant, as otherwise it could not have been used as evidence against him.
As already indicated, the incident of August 24, is a clear indication of the existence of the conspiracy, and the court was perfectly justified in drawing up the charge under section 120B also.
It is no 1146 answer in law to say that unless the charge under that section had been framed, the act or statement of one could not be admissible against the other.
Section 10 of the Indian Evidence Act, has been deliberately enacted in order to make such acts and statements of a co conspirator admissible against the whole body of conspirators, because of the nature of the crime.
A conspiracy is hatched in secrecy and executed in darkness.
Naturally, therefore, it is not feasible for the prosecution to connect each isolated act or statement of one accused with the acts or statements of the others, unless there is a common bond linking all of them together.
Ordinarily, specially in a criminal case, one person cannot be made responsible for the acts or statements of another.
It is only when there is evidence of a concerted action in :furtherance of a common intention to commit a crime, that the law has introduced this rule of common responsibility, on the principle that every one concerned in a conspiracy is acting as the agent of the rest of them.
As soon as the court has reasonable grounds to believe that there is identity of interest or community of purpose between a number of persons, any act done, or any statement or declaration made, by any one of the co conspirators is, naturally, held to be the act or statement of the other conspirators, if the act or the declaration has any relation to the object of the conspiracy.
Otherwise, stray acts done in darkness in prosecution of an object hatched in secrecy, may not become intelligible without reference to the common purpose running through the chain of acts or illegal omissions attributable to individual members of the conspiracy.
It was also suggested that the statement made by the first appellant on August 31, about the purpose of the payment, having been made after the payment, was not admissible in evidence because the object of the conspiracy had been accomplished before the statement in question was made.
Reliance was placed in this connection upon the decision of their Lordships of the Judicial Committee in Mirza Akbar vs The King Emperor.(1).
But that decision is itself an answer to the (1) (1940) L.R. 67 I.A. 336.
1147 contention raised.
The payment was made, and the statement that it was being made with a view to hushing up the case against the second appellant is a part of the same transaction, that is to say, the statement accompanied the act of payment of the bribe.
Hence, it cannot be said that the statement was made after the object of the conspiracy had already been accomplished.
The object of the conspiracy was the hushing up of the criminal case against the second appellant by bribing the public servant who was in charge of the investigation of the case.
The object of the conspiracy was yet far from being accomplished when the statement in question was made.
The leading case on the subject is that of R. vs Blake (1).
That decision is an authority both for the positive and the negative aspects of the question.
It lays down what is admissible and what is not admissible.
It held that the documents actually used in effectuating the objects of the conspiracy, were admissible, and that those documents which had been created by one of the conspirators after the object of the conspiracy had been achieved, were not admissible.
section 10 of the Indian Evidence Act is on the same lines.
It is manifest that the statement in question in the present case was made by the first appellant in the course of the conspiracy, and accompanied the act of the payment of the money, and is clearly covered by the provisions of section 10, quoted above.
It must, therefore, be held that there is no substance in the only question of law raised in this appeal.
It is, accordingly, dismissed.
Appeal dismissed.

summary/full:
The appellants were prosecuted on charges under section 120B read with section 165A of the Indian Penal Code, for having conspired to commit the offence of bribing a public servant in connection with the discharge of his public duties.
The case against them was that on August 24, 1953, when the Inspector of Police who was in charge of the investigation of a case in which the second appellant was involved, was on his way to the police station, the appellants accosted him on the road and the second appellant asked him to hush up the case for valuable consideration.
Some days later, on August 31 the first appellant offered to the Inspector at the police station a packet containing Rs. 500 in currency notes and told him that the second appellant had sent the money through him in pursuance of the talk that they had with him on August 24, as a consideration for hushing up the case.
The courts below accepted the evidence adduced on behalf of the prosecution and convicted the appellants.
On appeal by special leave it was contended that the court had no reasonable grounds to believe that the appellants had entered into a conspiracy to commit the offence and that the statement of August 3 I was not admissible against the second appellant because (1) the charge under section 120B had been deliberately added in order that the act or statement of the one would be admissible against the other, and (2) the object of the conspiracy, namely the payment of the hush money, had been accomplished before the statement in question was made: Held, (1) that the incident of August 24 was evidence that the intention to commit the offence had been entertained by both the appellants on or before that date showing a clear indication of the existence of the conspiracy, and that the statement made by the first appellant on August 31 was admissible not only to prove that the second appellant had constituted the first appellant his agent in the perpetration of the crime but also to prove the existence of the conspiracy ; the court was therefore justified in drawing up the charge under section 120B along with that under section 165A of the Indian Penal Code.
(2)that the payment of the bribe and the statement of August 31 accompanying it, were part of the same transaction, having been made in the course of the conspiracy, and the 1142 statement in question was therefore admissible under section 10 of the Indian Evidence Act.
Mirza Akbar vs The King Emperor, (1940) L. R. 67 I. A. 336 and R. vs Blake, ; , relied on.