judgement:
l Appeal No. 133 1963.
Appeal from the judgment and decree dated November 17, 1960, of the Orissa High Court in First Appeal No. 45 of 1955.
M. C. Setalvad, R. K. Garg, M. K. Ramamurthi, D. P. Singh and section C. Agarwala, for the appellant.
section V. Gupte, Additional Solicitor General of India, Gana pathy Iyer and R. H. Dhebar, for the respondents.
March 9, 1964.
The judgment of the Court was delivered by GAJENDRAGADKAR, C.J.
The principal point of law, which arises in this appeal is whether the Sanad issued in favour of the appellant, Rajkumar Narsingh Pratap Singh Deo, by his elder brother, the Ruler of Dhenkanal State, on March 1, 1931, is existing law within the meaning of article 372 of the Constitution read with cl. 4(b) of Order No. 31 of 1948 issued by the respondent State of Orissa on January 1, 1948.
This question arises in this way.
The State of Dhenkanal which was an independent State prior to 1947 merged with the Province of Orissa in pursuance of a Merger Agreement entered into between the Ruler of Dhenkanal and the Dominion of India on December 15, 1947.
This Agreement came into force as from January 1, 1948.
In consequence of this Agreement the entire administration of the State of Dhenkanal was taken over by the State of Orissa pursuant to the authority conferred on it by the Central Government under section 3(2) of the Extra (No. 47 of 1947).
After the Sanad in question was issued in favour of the appellant, be was getting a monthly allowance of Rs. 5001 from the Dhenkanal District Treasury on the authority of a permanent Pay Order which had been issued in his favour by the Ruler of Dhenkanal on the basis of the said Sanad.
This payment was discontinued by the respondent from 1st of May, 1949 and the several representations made by the appellant to the various authorities of the respondent to reconsider the matter failed.
That is why lie filed the present suit on September 26, 1951 in the Court of the subordinate Judge, Dhenkanal, alleging that the act of discontinuing the appellant 's pension was illegal, and asking for appropriate reliefs in that behalf.
It is from this suit that the present appeal arises.
114 The appellant 's case is that in the family of the appellant, it has been recognised as a customary right of the junior members of the family to receive adequate maintenance consistently with the status of the family.
Indeed, the appellant 's allegation is that this custom was recognised in Dhenkanal and enforced as customary law in the State.
The grants made to the members of the Royal Family for their maintenance consisted of lands and cash allowances.
These latter were described as Kharposh allowances and they were charged and paid out of the revenue of the former State of Dhenkanal.
It was in accordance with this customary law that the Sanad in question was issued by the Ruler of Dhenkanal in favour of the appellant.
By this Sanad, certain lands were granted to the appellant and a cash allowance of Rs. 5001 per month was directed to be paid to him for life.
The appellant 's grievance is that this , rant of Rs. 5001 allowance has been discontinued by the respondent and that, according to the appellant, is an illegal and unconstitutional act.
In support of his plea that the respondent was bound to continue the payment of the cash allowance, the appellant urged in his suit that the grant was a law within the meaning of article 372 and as such, it had to be continued.
He also alleged that after the merger of Dhenkanal with Orissa, his right to receive the grant was recognised by the respondent and acted upon; and that is another reason why he claimed an appropriate relief in, the form of an injunction against the respondent.
Several other pleas were also taken by the appellant in support of his claim, but it is not necessary to refer to them for the purpose of the present appeal.
The respondent denied the appellant 's claim and urged that having regard to the nature of the grant on which the appellant has rested his case, it was competent to the respondent to discontinue the grant.
The grant in question is not law under article 372 and just as it could be made by the Ruler in 1931 by an executive act, it can be discontinued by the respondent by a similar executive act since the respondent is the successor of the Ruler.
It was also urged by the respondent that the appellant 's allegation that the respondent had recognised and agreed to act upon the grant of cash allowance, was not well founded.
Both the learned trial Judge who tried the appellant 's case, and the High Court of Orissa before which the appellant took his case in appeal, have, in the main, rejected the appellant 's contention, with the result that the appellant 's suit has been dismissed.
The appellant then applied for and obtained a certificate from the High Court and it is with the certificate thus granted to him that he has come to this Court in appeal.
The first and the main point which Mr. Setalvad for the appellant has urged before us is that the Sanad on which the appellant 's claim is founded, is law.
At the time when the 115 Senad was granted, the Ruler of Dhenkanal was an absolute monarch and in him.
vested full sovereignty; as such absolute sovereign, he was endowed with.
legislative, judicial and executive powers and authority and whatever order tie passed amounted to law.
In the case of an absolute monarch whose ' word is literally law, it would be idle, says Mr. Setalvad, to distinguish between binding orders issued by him which are legislative from other binding orders which are executive or administrative.
All binding orders issued by such a Ruler are, on the ultimate analysis, law, and the Sanad in question falls under the category of such law.
In support of this argument, Mr. Setalvad has referred Lis to the definition of the words "existing law" prescribed by article 366(10) of the Constitution.
article 366(10) provides that "existing law" means any law, ordinance, order, bye law, rule or regulation passed or made before the commencement of this Constitution by any Legislature, authority or person having power to make such a, law, ordinance, order, bye law, rule or regulation.
Basing himself on this definition, Mr. Setalvad also relies on the provisions of article 372(1) which provides for the continuance in force of existing laws; this continuance is, of course, subject to the other provisions of the Constitution and it applies to such laws as were in force in the territory of India immediately before the commencement of the Constitution, until they are altered, repealed or amended by a, competent Legislature or other competent authority.
These provisions are invoked by Mr. Setalvad primarily by virtue of cl.
4(b) of Order 31 of 1948 issued by the respon dent on the 1st of January, 1948.
It is well known that by s.3(1) of the Extra , the Central Government was given very wide powers to exercise extra provincial jurisdiction in such manner as it thought fit.
Section 3(2) provided that the Central Government may delegate any such jurisdiction as aforesaid to any officer or authority in such manner and to such extent as it thinks fit.
The width of the powers conferred on the Central Government can be properly appreciated if the provisions of section 4 are taken into account.
Under section 4(1), the, Central Government was authorised by notification in the Official Gazette to make such orders as may seem to it expedient for the effective exercise of the extraforeign jurisdiction of the Central Government.
Section 4(2) indicates by cls.
(a) to (d) the categories of orders which can be passed by the Central Government in exercise of its jurisdiction.
The sweep of these powers is very wide and they had to be exercised in the interests of the proper governance of the areas to which the said Act applied.
Under section 3(2), the Central Government bad delegated its powers to the Province of Orissa in respect of States which had merged with it, and it was in exercise of its powers as such delegated that Order 31 of 1948 116 was issued by the Province of Orissa (now the respondent).
4 of the Order dealt with the question of the laws to be applied to the merging areas.
4(a) referred to the enactments specified in the first column of the Schedule annexed to the Order and made them applicable as indicated in it.
4(b) provided that as respects those matters which are not covered by the enactments applied to the Orissa States under sub para (a), all laws in force in any of the Orissa States prior to the commencement of this Order, whether substantive or procedural and whether based on custom and usage, or statutes, shall, subject to the provisions of this Order, continue to remain in force until altered or amended by an Order under the Extra, Provincial Jurisdiction Act, 1947.
There is a proviso to this sub clause to which it is unnecessary to refer.
The argu ment is that by virtue of cl.
4(b) of this Order, the customary law prevailing in the State of Dhenkanal prior to its merger continued to operate as law in the territory of Dhenkanal and that is how it is operative even now, because it has not been repealed or amended.
Since the Sanad issued in favour of the appellant is, according to the appellant 's case, law, there would be no authority in the respondent to cancel the payment of cash allowance to the appellant merely by an executive order.
If the respondent wants to terminate the payment of the cash allowance to the appellant, the only way which the respondent can legitimately adopt is to make a law in that behalf, or issue an order under cl. 4(b) of the Order.
That, broadly stated, is the argument which has been pressed before us by Mr. Setalvad.
We do not think that the basic assumption made by Mr. Setalvad in presenting this argument is sound.
It would be noticed that the basic assumption on which the argument is based is that in the case of an absolute monarch, there can be no distinction between executive and legislative orders.
In other words, it is assumed that all orders which are passed by an absolute monarch, are binding, and it is idle to enquire whether they are executive or legislative in character, because no such distinction can be made in regard to orders issued by an absolute monarch.
It is true that the legislative, executive and judicial powers are all vested in an absolute monarch; he is the source or fountain of all these powers and any order made by him would be binding within the territory under his rule without examining the question as to whether it is legislative, executive or judicial; but though all the three powers are vested in the same individual, that does not obliterate the difference in the character of those powers.
The jurisprudential distinction between the legislative and the executive powers still remains, though for practical purposes, an examination about the character of these orders may serve no useful purpose.
It is not as if where absolute monarchs have sway in 117 their kingdoms, the basic principles of jurisprudence which distinguish between the three categories of powers are inapplicable.
A careful examination of the orders passed by an absolute monarch would disclose to a jurist whether the power exercised in a given case by issuing a given order is judicial, legislative, or executive, and the conclusion reached on jurisprudential grounds about the nature of the order and the source of power on which it is based would nevertheless be true and correct.
That, indeed, is the approach which must be adopted in considering the question as to whether the grant in the present case is law within the meaning of article 372 as well as cl.
4(b) of Order 31 of 1948; and so, prima facie, it does not seem sound to suggest that in the case of an absolute monarch, that branch of jurisprudence which makes a distinction between three kinds of power is entirely inapplicable.
In dealing with this aspect of the matter, it is hardly necessary to examine and decide what distinguishes a law from an executive order.
A theoretical or academic discussion of this problem would not be necessary for our present purpose, because all that we are considering at this stage is whether or not it would be possible to consider by reference to the character of the order, its provisions, its context and its general setting whether it is a legislative order or an executive order.
Though theorists may not find it easy to define a law as distinguished from executive orders, the main features and characteristics of law are well recognised.
Stated broadly, a law generally is a body of rules which have been laid down for determining legal rights and legal obligations which are recognised by courts.
In that sense, a law can be distinguished from a grant, because in the case of a grant, the grantor and the grantee both agree about the making and the acceptance of the grant; not so in the case of law.
Law in the case of an absolute monarch is his command which has to be obeyed by the citizens whether they agree with it or not.
Therefore, we are inclined to hold that Mr. Setalvad is not right in making the unqualified contention that while we are dealing with a grant made by absolute monarch, it is irrelevant to enquire whether the grant is the result of an executive action, or a legislative action.
On Mr. Setalvad 's contention, every act of the absolute monarch and every order passed by him would become law though the act or order may have relation exclusively to his personal matters and may have no impact on the public at large.
That is why it is unsound to suggest that the jurisprudential distinction between orders which are judicial, executive or legislative or in relation to purely individual and personal matters should be treated as irrelevant in dealing with Acts or orders passed even by an absolute monarch.
Realising the difficulty in his way, Mr. Setalvad has strongly relied on certain decisions of this Court which, according to him, support the broad point which he has raised before 118 us.
It is, therefore, necessary to examine these decisions.
The first case on which Mr. Setalvad relies is that of Ameer unNissa Begum vs Mahboob Begum(1).
In that case, this Court was called upon to consider the validity 'of the Firman issued by the Nizam of Hyderabad on the 19th February, 1939, by which a Special Commission had been constituted to investigate and submit a report to him in the case of succession to a deceased Nawab which was transferred to the commission from the file of Darul Quaza Court.
Dealing with the question as to whether the Firman in question was passed by the Nizam in exercise of his legislative power or judicial power, Mukherjea, C.J., speaking for the Court, observed that the Nizam was the supreme legislature, the supreme judiciary and the supreme head of the executive and there were no constitutional limitations upon his authority to act in any 'of these capacities.
He also observed that the Firmans were expressions of the sovereign will of the Nizam and they were binding in the same way as any other law; therefore so long as a particular firman held the field, that alone would govern or regulate the rights of the parties concerned, though it could be annulled or modified by a later Firman at any time that the Nizam willed.
It appears, however, that the learned counsel appearing in that case did not argue this point, and so, the question as to whether it would be possible or useful to draw a line of demarcation between a Firman which is legislative and that which is executive, was neither debated before the Court, nor has it been examined and decided as a general proposition of law.
In The Director of Endowments, Government of Hyderabad vs Akram Ali(2), similar observations were repeated by Bose, J., who spoke for the Court on that occasion.
Dealing with the Firman issued by the Nizam on the 30th December, 1920, which directed the Department to supervise the Dargah until the rights of the parties were enquired into and decided by the Civil Court, it was 'observed that the Nizam was an absolute sovereign regarding all domestic matters at the time when the Firman was issued and his word was law.
That is bow the validity of the Firman was not questioned and it was held that its effect was to deprive the respondent before the Court and all other claimants of all rights to possession pending enquiry of the case.
In this case again, as in the case of Ameer un Nissa Begum(1), the point does not appear to have been argued and the observations are, therefore, not intender to lay down a broad or general proposition as contended by Mr. Setalvad.
That takes us to the decision in the case of Madhaorao Phalke vs The State of Madhya Bharat(3).
On this occasion, This Court was called upon to consider the question as to (1) A.I.R. 1955 S.C. 352.
(2) A.I.R. 1956 S.C. 60 (3) ; 119 whether the relevant Kalambandis issued by the Ruler of Gwalior constituted law, 'or amounted merely to executive orders.
In the course of the judgment, the passages in the two cases to which we have just referred were, no doubt, quoted; but the ultimate decision was based not so much on any general ground as suggested by Mr. Setalvad, as on the examination of the character of the Kalambandis themselves and other ' relevant factors.
If Mr. Setalvad 's argument be well founded and the Kalambandis had to be treated as law on the broad , round that they were orders issued by an absolute monarch, it would have been hardly necessary to consider the scope and effect of the Kalambandis, the manner in which they were passed, and the object and effect of their scheme.
In fact, these matters were considered in the judgment and it was ultimately held that "having regard to the contents of the two orders and the character of the provisions made by them in such a detailed manner, it is difficult to distinguish them from statutes or laws; in any event, they must be treated as rules or regulations having the force of law".
That was the finding made by the High Court and the said finding was affirmed by this Court.
Therefore, though this judgment repeated the general observations made by this Court on two earlier occasions, it would be noticed that the decision was based not so much on the said observations, as on a careful examination of the provisions contained in the Kalambandis themselves.
In Promod Chandra Deb vs The State of Orissa(1), this Court has held that the grant with which the Court was concerned, read in the light of Order 31 of the Rules, Regulations and Privileges of Khanjadars and Khorposhdars, was law.
In discussing the question, Sinha, C.J., has referred to Order 31 of the Rules and Regulations and has observed that like the Kalambandis in the case of Phalke(2), the said Rules has the force of law and would be existing jaw within the meaning of article 372 of the Constitution.
This case does not carry the position any further except that the same general observations are reproduced.
In the case of Tilkayat Shri Govindlalji Maharaj vs State of Rajasthan(3), while dealing with the question as to whether the Firman issued by the Udaipur Darbar in 1934 was law or not, this Court examined the scheme of the said Firman, considered its provisions, their scope and effect and came to the conclusion that it was law.
Having thus reached the conclusion that the Firman, considered as a whole, was law, the general observations on which Mr. Setalvad relies were reproduced.
But as in the case of Phalke (2), so in this case, the decision does not appear to be based on any general or a priori consideration, but it is based more particularly on the examination of the scheme of the Firman and its provisions.
(1) [1962] Supp. 1 S.C.R. 405,410.
(2) ; (3) [1964] 1 section C. R. 561. 120 In the case of Maharaja Shree Umaid Mills Ltd. vs Union of India(1), a similar question arose for the decision of this Court in regard to an agreement made on the 17th of April, 1941.
The point urged before the Court was that the said agreement was law, and reliance was placed on the several general observations to which we have already referred.
section K. Das.
J. who spoke for the Court examined the said observations and the context in which they were made and rejected the plea that the said observations were intended to lay down a general proposition that in the case of an absolute monarch, no distinction can be made between his legislative and his executive acts.
In the result, the agreement in question was held to be no more than a contract which was an executive act and not a law within the meaning of article 372.
The same view has been recently expressed by Hidayatullah, Shah and Ayyangar, JJ.
in the judgments respectively delivered by them in The State of Gujarat vs Vora Fiddali Badruddin Mithibarwala(2).
Therefore, a close examination of the decisions on which Mr. Setalvad relies does not support his argument that this Court has laid down a general proposition about the irrele vance or inapplicability of the well recognised distinction between legislative and executive acts in regard to the orders issued by absolute monarchs like the Raja of Dhenkanal in the present case.
The true legal position is that whenever a dispute arises as to whether an order passed by an absolute monarch represents a legislative act and continues to remain operative by virtue of cl.
4(b) of the Order, all relevant factors must be considered before the question is answered; the nature of the 'order, the scope and effect of its provisions, its general setting and context, the method adopted by the Ruler in promulgating legislative as distinguished from executive orders, these and other allied matters will have to be examined before the character of the order is judicially determined, and so, we are satisfied that Mr. Setalvad is not right in placing his argument as high as to say that the Sanad issued in favour of the appellant by the Raja of Dhenkanal must be field to be law without considering the nature of the rant contained in it and other relevant circumstances and facts.
We must, therefore.
proceed to examine these relevant facts.
Let us then examine the Sanad.
It consists of three clauses.
The first clause refers to the practice in the State of Dhenkanal under which the Rajas made grants in hereditary rights to their relatives, and it adds that there exists a patent necessity for making an adequate provision for the grantee.
(1) ; (2) ; 121 the appellant, to enable him to maintain his dignity as a Rajkumar of the State and to maintain himself, his family, his heirs and descendants in a manner befitting his and their position. 'That is why out of love and affection for him, the grantor made the khanja grant in the shape of a monthly cash allowance of Rs. 500/ for his life time and also an assignment of land measuring 6942 71 5 acres specified in the Schedule attached to the Sanad.
The grant of the said land has been made heritable and the grantee has been authorised to enjoy it from generation to generation.
The extent of the grant is also clarified by additional clauses which it is unnecessary to mention.
Clause 2 of the Sanad imposes the condition of loyalty on the grantee and his heirs; and by cl. 3 the State undertook to bear all costs for reclaiming the land covered by the grant with a view to render it fit for cultivation, Now, it is plain that there is no legislative element in any of the provisions of this grant.
It does not contain any command which has to be obeyed by the citizens of the State; it is a gift pure and simple made by the Ruler in recognition of the fact that under the custom of the family and the customary law of the State, he was bound to maintain his junior brother.
The grant, therefore, represents purely an executive act on the part of the Ruler intended to discharge his obligations to his ,junior brother under the personal law of the family and the customary law of the State.
It would, we think be idle to suggest that such a grant amounts to law.
It is true that partly it is based on the requirement of personal and customary law , but no action taken by the Ruler in discharging his obligations under such personal or customary law can be assimilated to an order issued by him in exercise of his legislative authority. 'Therefore, we have no difficulty in holding that the Sanad in question is a purely executive act and cannot be regarded as law as contended by Mr. Setalvad.
It was then faintly argued by Mr. Setalvad that the obli gation undertaken by the Ruler was recognised by the respon dent, and so, it could not be cancelled by the respondent merely by an executive act.
In our opinion, there is no substance in this argument.
If the act by which the grant was made was a purely executive act on the part of the then Ruler of the State of Dhenkanal, we do not see how it can be legitimately urged that the terms of the grant cannot either be modified, or the grant cannot be cancelled altogether by an executive act of the respondent which is the successor of the Ruler.
As we have just indicated, the customary law which required the Ruler to provide maintenance for his junior brother, can be said to have been continued by cl. 4(b) of the Order of 1948 and article 372 of the Constitution; but to say that the customary law in that behalf is continued is very different from saying that the amount of maintenance fixed by the grant cannot be 122 varied or altered.
What the respondent has done is to stop the payment of cash allowance of Rs. 5001 per month an a does not mean alteration of the law.
It is common ground that the grant of the land covered by the Sanad has not been disturbed, and so, all that the impugned action of the respondent amounts to is to reduce the total maintenance allowance granted to the appellant by the Ruler in 19 3 1.
It is plain that though the customary law requiring provision to be made for the maintenance of the appellant is in force, the respondent has the right to determine what would be adequate and appropriate maintenance, and this part of the right is purely executive in character.
It would, we think, be unreasonable to suggest that though the Sanad is not law, the amount granted by the Sanad cannot be modified by an executive act of the respondent, and that the respondent must file a suit for that purpose.
All that the customary law requires is the making of a suitable provision for the maintenance of the junior members of the family.
But what is adequate provision in that behalf will always be a question of fact which has to be determined in the light of several relevant factors , the number of persons entitled to receive maintenance, the requirements of the status of the members of the family, the total income derived by the family, and other commitments, may all have to be weighed in deciding the quantum of maintenance which should be awarded to anyone of the junior members.
In fact, both the Courts below have agreed in holding that having regard to the relevant facts, the grant of the land made by the Sanad would be adequate and appropriate for the maintenance of the appellant.
But apart from this aspect of the matter, we do not see how the appellant can seriously quarrel with the validity of the respondent 's action in discontinuing the payment of cash allowance to him.
The plea that payment was made for some time after the merger can hardly avail the appellant.
in contending that the discontinuance is invalid.
In the very nature of things, the respondent could not have decided whether the cash allowance should be continued to the appellant or not without examining the merits of the case, and since a large number of such cases had to be examined after merger, if the payment continued to be made in the meantime, that cannot give any valid ground to the appellant to challenge the legality of the ultimate decision of the respondent to discontinue the payment of the said allowance.
The result is, we confirm the decision of the High Court, though on somewhat different grounds.
The appeal according ly fails and is dismissed.
There would be no order as to costs.

summary/full:
The Ruler of Dhenkanal State granted a sanad by way of Khorposh allowance to his younger brother, the appellant giving certain lands and a maintenance allowance, under the customary law of the State.
After the merger of that State to the Dominion of India which became effective on January 1, 1948, the Government of Orissa took over the administration of the State and discontinued the cash allowance.
The appellant challenged the validity of the order of discontinuance by a suit in the Court of Subordinate Judge.
The suit was dismissed.
On appeal to this Court it was urged on behalf of the appellant that the sanad issued by an absolute monarch was law, and was continued by articles 366(10), 372(1) of the Constitution and cl.
4(b) of the Order 31 of 1948 issued by the Orissa Government in exercise of the power delegated to it by the Central Government under section 3(2) of the Extra .
Held: (i) It was not correct to say that in dealing with a grant made by an absolute monarch any enquiry as to whether the grant was the result of an executive or legislative act was altogether irrelevant.
This Court did not lay down any inflexible rule that the well recognised jurisprudential distinction between legislative and executive acts was wholly irrelevant or inapplicable to such a case.
Ameer un Nissa Begum vs Mahboob Begum, A.I.R. 1955 S.C. 352, Director of Endowments, Government of Hyderabad vs Akram Ali, A.T.R. , Madhaorao Phalke vs State of Madhya Bharat, ; , Promode Chandra Deb vs State of Orissa, [1962] Supp. 1 S.C.R. 405, Tilkayat Shri Govindlalji Maharaj vs State of Rajasthan, [1964] 1 S.C.R. 561, Maharaja Shree Umaid Mills Ltd. vs Union of India, ; and State of Gujarat vs Vora Fiddali Badruddin Nithibarwala, ; , considered.
In such an enquiry it was necessary to consider such rele vant factors as the nature of the order, its scope and effect, general setting and context and the method adopted by the Ruler in promulgating it.
So judged, the Sanad in question had no legislative element in any of its provisions and was a gift pure and simple made in pursuance of the custom of the family and customary law of the State.
The gift therefore, was an executive act of the Ruler and did not amount to law although the Ruler was discharging by it his obligation under personal or customary law.
113 The gift being an executive act of the Ruler could be modified or cancelled by an executive act of the successor to the Ruler.
The discontinuance of the cash allowance could not affect the continuance of the customary law under cl. 4(b) of the Order of 1948 and article 372 of the Constitution.
Nor could the plea of payment of such allowance even after the merger invalidate the discontinuance.


judgement:
Appeal No. 120 of 1963.
Appeal by special leave from the judgment and decree dated December 13, 1960, of the Allahabad High Court in Special Appeal No. 204 of 1957.
H. N. Sanyal, Solicitor General of India and C. P. Lal, for the appellants.
M. C. Setalvad and J. P. Goyal, for the respondents.
March 9, 1964.
The Judgment of the Court was delivered by SHAH, J.
Audh Narain Singh hereinafter called 'Singh ' was appointed in 1949 a Tahvildar in the District of Azamgarh in the State of U.P. and worked in the Cash Department of the Government treasury of that District.
The appointment of Singh was made by Dhanpat Singh Tandon, Government Treasurer, with the approval of the District Magistrate.
By order dated April 20, 1956, Singh who was then working as a Tahvildar in the sub treasury at tahsil Lalganj in the District of Azaimarli was informed that he was, under instructions from the Collector, removed from service.
Against the order of removal, Singh preferred an appeal to the Collector but the same was rejected, and a representation made to the Commissioner of the Banaras Division was unsuccessful.
Singh then preferred a petition under article 226 of the Constitution in the High Court of Judicature at Allahabad for a writ of certiorari quashing the order of removal passed against him and for a writ of mandamus or an order directing the Collector of Azamgarh and the State of Uttar Pradesh, Dhanpat Singh Tandon, Government Treasurer, and the Commissioner of Banaras Division to treat him as Tahvildar in the sub treasury at Lalganj in the District of Azamgarh.
Singh claimed that be was a member of the civil service of the State of Uttar Pradesh or 91 held a civil post under the State, and was not liable to be removed from service without being afforded a reasonable opportunity of showing cause against the action proposed to be taken in regard to him under article 311(2) of the Constitu tion.
Mehrotra J., who heard the petition held that the Government Treasurer being an employee of the State, a Tahvildar employed by the Government Treasurer to carry out the work entrusted by the State, subject to the control of the State Government, was an employee of the State Government, and the impugned order of removal was invalid because Singh was not afforded a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.
The order of Mehrotra J., was confirmed in appeal by the High Court of Allahabad.
In the view of the High Court, no direct relationship of master and servant between Singh and the State was established because Singh was appointed by the Treasurer, but the Treasurer having authority to employ him in order to carry out the work of the State, Singh was as much under the control of the State as he was under the con trol of the Treasurer and therefore he could claim to hold a civil post under the State and to have the benefit of article 311 of the Constitution.
Against the order passed by the High Court, this appeal is preferred with special leave.
The question which falls to be determined is whether a Tahvildar appointed in the Cash Department in the State of Uttar Pradesh is a civil servant of the State of Uttar Pradesh or holds a civil post in the State.
In the State of Uttar Pradesh, contracts for administering the Cash Department of the District treasuries are given to persons who are called Government Treasurer.
The Treasurer holds a post specifically created in the District Treasury: he is appointed by the Collector subject to the approval of the Finance Secretary.
On being appointed, the Treasurer enters into an engagement for the due performance of his duties, and executes a bond in favour of the State.
The tenure of a Government Treasurer is temporary and he is not entitled to privileges of leave and pension, but he performs various duties connected with the executive functions of the State.
His appointment is made by the Collector subject to the approval of the Finance Secretary.
He has to maintain a true and faithful account of the property entrusted to him and his dealings therewith and to submit returns as prescribed.
He is also bound by the conditions, rules and regulations of the Government and also departmental rules and orders as may be in force, especially with reference to his relations and dealings with and the right of his subordinates.
He has to attend the Government Treasury for the purpose of discharging his duties, and to show to his superior officers whenever called upon the property entrusted to him.
A Government Treasurer is not in 92 the position of an independent contractor; he does not merely undertake to produce a given result, without being in the actual execution under the control of the person for whom he does the work.
He is in the execution of his duties, and in the manner, method and mode of his work under the control of the State Government.
A Government Treasurer is entitled to appoint Tahvildars to assist him in the discharge of his duties, but the appoint ment is made 'with the approval of the District Collector.
Originally Tahvildars were directly appointed by the Govern ment of the Province to specific posts for performing duties in the District Treasuries.
In 1927, however, Government Order dated July 25, 1927, was issued by the Secretary to Government Uttar Pradesh, Finance Department, reciting that Tahvildars in sub treasuries were appointed on the nomination of the Treasurer of the District Treasury, who was responsible for their work and honesty, the intention of the Government being that a Treasurer might dispense with the services of a Tahvildar as soon as he had lost confidence in him, but it had not been possible to put this intention into practice, because the Tahvildars were paid from the general revenue and were whole time Government servants and entitled to the protection given to all Government servants by the Classification Rules, and it was difficult to hold the usual enquiry for the removal of a Tahvildar for he must be removed from service as soon as he lost the confidence of the Treasurer, otherwise the responsibility of the Treasurer to the Government would be impaired.
In the circumstances, the best solution was to abolish the post of Tahvildars, to increase the remuneration of the Treasurer by an amount equal to the pay given to Tahvildars and to make 'him responsible for carrying on the work at sub treasuries through his own servants.
A reservation, however was made that the Treasurer must not employ any person in the treasury or sub treasury without the approval of the District Officer and the Treasurer shall, when required by such District Officer remove without delay any person so employed.
Pursuant to this Government Order, in the Manual of Orders the following paragraph 1561 was incorporated: "Tahvildars at sub treasuries are no longer Government servants.
They are employed by the Treasurer who receives an allowance from Government to cover their pay and leave salary.
The Treasurer however, shall not employ any person as a Tahvildar without the approval of the District Officer.
The Treasurer shall remove a Tahvildar or transfer him from one Tahsil to another if required by the District Officer to do so on any ground which in the latter 's opinion would justify such a step.
" 93 Even after the posts of Tahvildar were abolished the Government of Uttar Pradesh did not adopt a consistent atti tude and from time to time issued orders which indicate that a ,considerable degree of control was maintained by the District Officers upon the Tahvildars in the matter of appointment, removal from service, suspension and transfers and in the matter of payment of remuneration, dearness allowance and making available certain medical benefits, Tahvildars were treated on a par with other civil servants of the State.
On December 9, 1939, a Government Order was issued for payment of remuneration to the Tahvildars directly from the ,Government Treasury.
It had come to the notice of the Government that the Treasurers paid to the cashier staff of the treasuries less than what they received on their account from the Government, after obtaining receipts for full amount.
It was therefore directed that the Treasurer should prepare a statement showing in detail the emoluments of the staff, but payment of emoluments was to be made to the persons concerned by the Treasury Officer personally and their acknowledgment taken.
In 1945 the Government of Uttar Pradesh raised with effect from April 1, 1945, the allowance to be paid to Government Treasurers for the pay of "the cashier staff of treasuries.
" By para 3(a) a scheme for payment of gratuity on retirement was also devised for the benefit of permanent Tahvildars.
It was provided that when a permanent Tahvildar retired, a gratuity of one month 's pay will be given to him for ,each completed year of service, subject to a maximum of 25 years ' completed service, the gratuity being admissible to permanent incumbents of posts and also to future entrants when appointed permanently, but not if the service of a Tahvildar was found either unsatisfactory, or if he resigned or was removed or dismissed from service.
Gratuity was to be paid in the same manner as salaries were paid to the Tahvildars, and provisions on account of the increase due to the pay of Government Treasurers and allowances payable for the pay of the cashier staff of treasuries and for the grant of gratuity to the cashier staff were made under the Heads "25 General Administration B District Administration (a) General Establishment, Pay of Establishment Contract and Extra Contract Establishment" and "55 Superannuation Allowances and Pensions and Gratuities Voted" respectively in the budget.
By ,a letter dated June 17, 1953, addressed by the Joint Secretary to the Government, it was brought to the notice of the Collectors of Districts that the Government Treasurers had frequently dispensed with the services of Tahvildars working under them without sufficient reasons justifying such a course of action and attempts had been made to harass such staff and that as a result of such arbitrary action on the part of the Government Treasurers, hardship had been caused to those employees.
The Government therefore informed the Collectors to bring to the 94 notice of the Treasure that adverse notice of such action is likely to be taken by the Government in future in case it was established that the Government Treasurers had indulged in high handedness in their dealings with their staff.
It was also recorded by the Collector of Azamgarh that instances had come to his notice in which the services of the employees in the Cash Department of the treasuries had been dispensed with arbitrarily without framing specific charges against them or obtaining explanations, and it was ordered that in future when services of the employees in the Cash Department were to be dispensed with, a report for their suspension should be made and specific charges framed against them and they should be given time to explain the charges and their services should not be dispensed with as a result of arbitrary action of the subordinate staff or the Treasurer.
Orders have also been lately issued in 1959, by which the scale of dearness allowance of the Tahvildars was revised and certain facilities for free medical attendance were also provided.
It also appears that in some cases in which the Tahvildars who had been dismissed or suspended were reinstated by order of the Collector.
For instance, under Treasury Officer, Azamgarh 's order dated August 14, 1948, it was recorded that under the Collector 's order Naunidh Prasad, Tahvildar, Phulpur (under suspension), was reinstated with effect from the date of taking over charge.
There is also an order passed by the District Magistrate, Allahabad, in 1952 deputing one Ganesh Prasad working as Tahvildar in Handia sub treasury for Kumbha Mela duty.
There is also the record of the disciplinary proceeding held by the District Magistrate on April 12, 1948, against Tahvildar Ganesh Prasad for improper conduct.
It is therefore clear from the record that Tahvildars were appointed to perform the duties of cashiers in Government Treasuries.
Their appointment was made by the Government Treasurer with the approval of the District Collector, but it was made for performance of public duties, and remuneration was paid to them by the State directly.
Tahvildars were liable to be transferred under orders of the Collector and to be suspended or removed from service under his orders.
An instance already referred to shows that a Tahvildar who had, been suspended by the Treasurer was ordered to be reinstated by the Collector.
It is from these circumstances that the relationship between the Government of Uttar Pradesh and Tahvildars has to be ascertained.
Whether in a given case the relationship of master and servant exists is a question of fact, which must be determined on a consideration of all material and relevant circumstances having a bearing on that question.
In general selection by the employer, coupled with payment by him of remuneration or wages, the right to control the method of work, and a power 95 to suspend or remove from employment are indicative of the relation of master and servant.
But co existence of all these indicia is not predicated in every case to make the relation one of master and servant.
In special classes of employment, a contract of service may exist, even in the absence of one or more of these indicia.
But ordinarily the right of an employer to control the method of doing the work, and the power of superintendence and control may be treated as strongly indicative of the relation of master and servant, for that relation imports the power not only to direct the doing of some work, but also the power to direct the manner in which the work is to be done.
If the employer has the power, prima facie, the relation is that of master and servant.
The work of the Government Treasurers has to be conducted according to the Rules and Regulations framed by the Government, and directions issued from time to time.
The Government Treasurer holds a post in a public employment and he is assisted by Tahvildars in the performance of his duties.
The Tahvildar acts not on behalf of the Treasurer in performing his duties, but on behalf of the State.
Undoubtedly the Treasurer undertakes responsibility for the loss which may be occasioned by the Tahvildar, but solely on that account it cannot be held that the Tahvildar is merely an appointee of the Treasurer and is not a servant of the State.
The selection of Tahvildar though made by the Treasurer is controlled by the Collector; the Tahvildar is remunerated by the State, method of his work is controlled by the State, and the State exercises the power to suspend, dismiss and reinstate him.
In Shivanandan Sharma vs The Punjab National Bank Ltd.(1) it was held that a head cashier in one of the branches of the Punjab National Bank Ltd., who was appointed by the Treasurer in charge of the Cash Department under an agreement with the Bank, was an employee of the Bank.
In the view of the Court, the direction and control of the cashier and of the ministerial staff in charge of the Cash Department the Bank being entirely vested in the Bank, the cashier must be deemed to be an employee of the Bank.
Sinha J., observed at p. 1442: "If a master employs a servant and authorizes him to employ a number of persons to do a particular job and to guarantee their fidelity and efficiency for a cash consideration, the employees thus appointed by the servant would be equally with the employer, servants of the master." Similarly in Dharangadhara Chemical Works Ltd. vs State of Saurashtra(2) it was held that "the prima facie test of" the (1) ; (2) ; 96 relationship of master and servant "is the existence of the right in the employer not merely to direct what work is to be done but also to control the manner in which it is to be done, the nature or extent of such control varying in different industries and being by its nature incapable of being precisely defined.
" In M/s Piyare Lal Adishwar Lal vs The Commissioner of Income tax, Delhi(1) it was held that the Treasurer appointed by the Bank who was to carry out the duties as directed by the Bank was a servant of the Bank, and not an independent contractor.
The Government Treasurer is a civil servant of the State holding a specific post, and he is authorised by the terms of his, employment to employ Tahvildars to assist him in discharging his duties.
Payment of remuneration to the Tahvildars is for services rendered in the "cashier department of the District treasury" of the State.
The Tahvildars receive their remuneration directly from the State, and are subject to the control of the District Officers in the matter of transfer, removal and disciplinary action.
Employment of Tahvildars being for the purpose of carrying out the work of the State, even though a degree of control is exercised by the Government Treasurer and the appointment is in the first instance made by the Treasurer subject to the approval of the District Officers, it must be held that the Tahvildar is entitled to the protection of ' article 311 of the Constitution.
The order removing Singh from service was made at the instance of the Collector, and did not conform to the requirements of article 311(2) of the Constitution and was on that: account invalid.
We therefore agree with the High Court, that the impugned order must be declared invalid.
The appeal fails and is dismissed with costs.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The respondent was appointed in 1949 a Tahvildar in the District of Azamgarh in the State of Uttar Pradesh and he worked, in the Cash Department of the Government Treasury of that District.
His appointment was made by Government Treasurer with the approval of Collector of the District.
In 1956, he was removed from service under instructions from the Collector.
He filed a writ petition in the High Court in which he challenged the legality of the order removing him from service on the ground that he was a member of the civil service of the State of Uttar Pradesh or held a civil post under the State and hence was not liable to be removed from service without being afforded a reasonable opportunity of showing cause against the action proposed to be taken in regard to him under article 311(2) of the Constitution.
The High Court held that the respondent was an employee of the State Government and as the provisions of article 311(2) had not been observed, the order terminating his services was illegal.
The appellant has come to this Court by special leave.
The only question raised before this Court was, whether a Tahvildar appointed in the Cash Department in the State of Uttar Pradesh is a civil servant of the State of Uttar Pradesh or holds a civil post in the State.
Dismissing the appeal, Held:The respondent was a civil servant of the State of Uttar Pradesh and as the requirements of article 311(2) were not conformed to, the order terminating his services was invalid.
The Government Treasurer is a civil servant of the State holding a specific post and he is authorised by the terms of his employment to employ Tahvildars to assist him in discharging his duties.
Payment of remuneration to Tahvildars is for services rendered in the Cash Department of the District Treasury of the State.
The Tahvildars receive their remuneration directly from the State and are subject to the control of the District Officers in the matter of transfer, removal and disciplinary action.
Employment of Tahvildars being for the purpose of carrying out the work of the State, even though a degree of control is exercised by the Government Treasurer and the appointment is in the first instance made by the Treasurer subject to the approval of the District Officers, the Tahvildar is entitled to the protection of article 311.
Whether in a given case, the relationship of master and ser vant exists is a question of fact which must be determined on a consideration of all material and relevant circumstances having a bearing on that question.
In general, selection by the employer,.
coupled with payment by him of remuneration or wages, the, 90 right to control the method of work and a power to suspend or remove from employment are indicative of the relation of master and servant.
However, co existence of all these indicia is not predicted in every case to make the relation one of master and ,servant.
In special classes of employment, the contract of service may exist, even in the absence of one or more of these indicia.
But ordinarily, the right of an employer to control the method of doing the work and the power of superintendence and control may be treated as strongly indicative of the relation of master and servant, for that relation imports the power not only to direct the doing of some work, but also to direct the manner in which work is to be done.
If the employer has such power, prima facie, the relation is one of master and servant.
Shivanandan Sharma vs The Punjab National Bank Ltd. ; , Dharangadhara Chemical Works Ltd. vs State of Saurashtra ; and M/s Piyare Lal Adisivar Lal vs Commissioner of Income tax, Delhi ; , referred to.


judgement:
s 1, 7, 8, 10, 53 and 76 of 1963.
Petitions under Art 32 of the Constitution of India for the enforcement of Fundamental Rights.
R.V. section Mani and K. R. Shama, for the petitioner (in W.P. Nos. 1 and 76 of 1963).
R. V. section Mani and T. R. Y. Sastri, for the petitioner (in W.P. Nos. 7, 8, 10 and 53).
A.V. Ranganadham Chetty and A. Y. Rangam, for the respondent (in the petitions).
I.N. Shroff, for the interveners Nos. 1 and 5 (in all the petitions).
M. C. Setalvad, N. section Bindra and R. H. Dhebar, for inter vener No. 2 (in W.P. No. 1 of 1.963).
C. P. Lal, for intervener No. 3 (in W.P. No. 1 of 1963).
R. H. Dhebar, for intervener No. 4 (in W.P. No. 1 of 1963).
section V. Gupte, Additional Solicitor General, N. section Bindra and R. H. Dhebar, for intervener No. 6 (in W.P. No. 1 of 1963).
83 March 9, 1964.
The Judgment of the Court was delivered by WANCHOO, J.
These six petitions under article 32 of Constitution raise a common question about the constitution ality of the Madras Land Reforms (Fixation of Ceiling on Land Act, No. 58 of 1961 (hereinafter referred to as the Act), which was assented to by the President on April 13, 1962 and came into force on publication in the Fort St. George Gazette on May 2, 1962.
The constitutionality of the Act is attacked on the ground that it violates articles 14, 19 and 31(2) of the Constitution.
It is not necessary to set out in full the attack made on the constitutionality of the Act in these petitions.
It will be enough if we indicate the two main attacks on the constitutionality of the Act under article 14.
The first of these is with respect to section 5 of the Act which lays down the ceiling area.
The second is on section 50 of the Act read with Sch.
III thereof, which provides for compensation.
It is urged that the Act is not protected under article 31 A of the Constitution and is therefore open to attack in case it violates article 14, 19 or 31.
The petitioners in this connection rely on the judgment of this Court in Karimbil Kunhikoman vs State of Kerala(1).
Before we consider the two main attacks on the constitu tionality of the Act we may briefly indicate the scheme of the Act.
Chapter 1 is preliminary, Section 3 thereof provides for various definitions, some of which we shall refer to later.
Chapter 11 deals with fixation of ceiling on land holdings.
Section 5 thereof fixes the ceiling area.
The other sections provide for determining surplus land, and s.18 provides for the acquisition of surplus land which vests in the Government free from all encumbrances.
Chapter III provides for ceiling on future acquisition and restriction on certain transfers.
Chapter IV provides for the constitution and functions of the land board.
Chapter V provides for the constitution and functions of the sugar factory board.
Chapter VI provides for compensation.
Section 50 thereof read with Sch.
III lays down the mode for determining compensation for the land acquired by the Government and other ancillary matters.
Chapter VII provides for survey and settlement of lands in the transferred territory which came to the State of Madras by virtue of the States Reorganisation Act of 1956.
Chapter VIII provides for cultivating tenants ' ceiling area.
Chapter IX provides for exemption of certain lands from the application of the Act.
Chapter X provides for land tribunals and Chapter XI for appeals and revision.
Chapter XII provides for certain penalties and procedure while Chapter XIII provides for disposal of land acquired by the Government under the Act.
Chapter XIV deals with miscellaneous provisions, including s.110, which provides for the framing of rules (1) [1962] Suppl.
1 S.C.R. 829.
84 The main purpose of the Act is to provide for a ceiling on land holdings, for determining surplus land which would be acquired by Government and for payment of compensation therefor.
The Act is applicable to agricultural land as defined in section 3(22) and is mainly concerned with persons holding lands in ryotwari settlement or in any other way subject to payment of revenue direct to the Government.
It is not in dispute that the Act is not protected under article 31 A of the Constitution and it is in this background that we shall consider the attack based on article 14 on the two main provisions of the Act relating to ceiling area under section 5 and compensation under section 50 read with Sch.
III of the Act.
It is first necessary to read certain definitions in s 3.
Section 3(14) defines family as follows "family" in relation to a person means the person, the wife or husband, as the case may be, of such person and his or her (i) minor sons and unmarried daughters; and (ii) Minor grandsons and unmarried grand daughters in the male line, whose father and mother are dead.
" It is unnecessary to refer to the explanation of section 3(14), for present purposes.
Section 3 (34) is in these terms: person ' includes any trust, company, family, firm, society or association of individuals, whether incorporated or not.
" Section 3 (45) is as follows: " 'surplus land ' means the land held by a person in excess of the ceiling area and declared to be surplus land under sections 12, 13 or 14.
" Section 5 is in these terms: "5.
(1) (a) Subject to the provisions of Chapter VIII, the ceiling area in the case of every person and, subject to the provisions of sub sections (4) and (5) and of Chapter VIII, the ceiling area in the case of every family consisting of not more than five members, shall be 30 standard acres (b) The ceiling area in the case of every family consisting of more than five members shall, subject to the provisions of sub sections (4) and (5) and of Chapter VIII, be 30 standard acres together with an additional 5 standard acres for every member of the family in excess of five.
(2) For the purposes of this section, all the lands held individually by the members of a family or jointly by some or all of the members of such family shall be deemed to be held by the family.
85 (3) (a) In calculating the extent of land held by a member of a family or by an individual person, the share of the member of the family or of the individual person in the land held by an undivided Hindu family, a Marumakkattayam tarwad, an Aliyasanthana family or a Nambudiri Illom shall be taken into account.
(b) In calculating the extent of land held by a family or by an individual person, the share of the family or of the individual person in the land held by a firm, society or association of individuals (whether incorporated or not) or by a company (other than a non agricultural company) shall be taken into account.
Explanation For the purposes of this section (a) the share of a member of a family or of an individual person in the land held by an undivided Hindu family, a Marumakkattayam tarwad, an Aliyasanathana family or a Nambudiri Illom, and (b) the share of a family or of an individual person in the land held by a firm, society or association of individuals (whether incorporated or not), or by a company (other than a non agricultural company), shall be deemed to be the extent of land (i) which, in case such share is held on the date of the commencement of this Act, would have been allotted to such member, person or family had such land been partitioned or divided, as the case may be, on such date; or (ii) which, in case such share is acquired in any manner whatsoever after the date of the commencement of this Act, would be allotted to such member, person or family if a partition or division were to take place on the date of the preparation of the draft statement under sub section (1) of section 10. "(4). . . " It is unnecessary to consider the rest of section 5 for present purposes.
The attack on section 5 (1) is that it is hit by article 14 inasmuch as it denies equality before the law or equal protection of law to persons similarly situate, and reliance is placed in this connection on the decision of this Court in Karimbil Kunhikoman(1).
In that case this Court was considering the Kerala Agrarian Relations Act, 1961 (hereinafter referred to as the 86 [1962] Suppl.
1 S.C.R. 829.
Kerala Act).
The argument is that as in the Kerala Act, so in the present Act, the word "family" has been given an artificial definition which does not conform to any kind of natural families prevalent in the State, namely, Hindu undivided family, Marumakkattayam family, Aliyasanathana family or Nambudiri Illom, and that a double standard has been fixed in section 5(1) in the matter of providing ceiling.
It is therefore urged that the ratio of that decision fully applies to the present Act.
Therefore, section 5(1) should be struck down as violative of article 14 in the same manner as section 58 of the Kerala Act was struck down.
We are of opinion that this contention is correct and the ratio of that case applies with full force to the present case.
It was observed in that case that "where the ceiling is fixed . . by a double standard and over and above that the family has been given an artificial definition which does not correspond with a natural family as known to personal law, there is bound to be discrimination resulting from such a provision".
In the present case also "family" has been given an artificial definition as will immediately be clear on reading.
3(14), which we have set out above.
It is true that this definition of "family" in section 3(14) is not exactly the same as in the Kerala Act.
Even so there can be no doubt that the definition of the word "family" in the present case is equally artificial.
Further in the Kerala Act section 58 fixed a double standard for the purpose of ceiling; in the present case section 5(1)(a) fixes a double standard though there is this distinction that in section 5(1) the same ceiling is fixed in the case of a person as in the case of a family consisting of not more than five members, namely, 30 standard acres while in the Kerala Act, the ceiling fixed for a family of not more than five was double that for an adult unmarried person.
But that in our opinion makes no difference in substance.
The provision of section 5(1) results in discrimination between persons equally circumstanced and is thus violate of article 14 of the Constitution.
This will be clear from a simple example of an undivided Hindu family, which we may give.
Take the case of a joint Hindu family consisting of a father, two major sons and two minor sons, and assume that the mother is dead.
Assume further that this natural family has 300 standard acres of land.
Clearly according to the personal law, if there is a division in the family, the father and each of the four sons will get 60 standard acres per head.
Now apply section 5(1) to this family.
The two major sons being not members of the family because of the artificial definition given to "family" in section 3(14) of the Act will be entitled to 30 standard acres each as individuals and the rest of their holdings i.e. 30 standard acres in the case of each will be Surplus land.
But the father and the two minor sons being an artificial family as defined in section 3(14) will be entitled to 30 87 standard acres between them and will thus lose 150 standard acres, which will become surplus land.
This shows, clearly how this double standard in the matter of ceiling read with the artificial definition of "family" will result in complete discrimination between these five members of a natural family.
Under the Hindu law each member would be entitled to onefifth share in the 300 standard acres belonging to the family.
Under the Act however the two major sons will keep 30 standard acres each while the father and the two minor sons together will keep 30 standard acres which work out to 10 standard acres each.
The two major sons will thus lose 30 standard acres each while the father and the two minor sons will lose fifty standard acres each.
No justification has been shown on behalf of the State for such discriminatory treatment resulting in the case of members of a joint Hindu family; nor ;.ire we able to understand why this discrimination which clearly results from the application of section 5 (1) of the Act is not violative of article 14 of the Constitution.
Examples can be multiplied with reference to joint Hindu families which would show that discrimination will result on the application of this provision.
Similarly we are of opinion that discrimination will result in the case of Marumakkattayam family, Aliyasanthana family and a Nambudiri Illom, particularly in the case of the former two where the husband and wife do not belong to the same family.
We are clearly of opinion that as in the case of section 58 of the Kerala Act so in the case of section 5 (1) of the Act discrimination is writ large on the consequences that follow from section 5(1).
We therefore hold that section 5(1) is violative of the fundamental right enshrined in article 14 of the Constitution.
As the section is the basis of Chapter 11 of the Act, the whole Chapter must fall along with it.
Next we come to the provisions as to compensation contained in section 50 read with Sch.
III of the Act.
Here again we are of opinion that the decision of this Court in Karimbil Kunhikoman 's(1) case fully applies to the scheme of compensation provided in the Act which is as discriminatory as was the scheme in the Kerala Act.
Learned counsel for the respondent however contends that Sch., III does not provide for any cut in the purchase price as was the case in the Kerala Act, and therefore the provisions in the Act are not discriminatory.
If we look at the substance of the matter, however, we find that there is really no difference between the provisions for compensation in the Kerala Act and the provisions in respect thereof in the Act, though the provisions in the Act are differently worded.
What was done in the Kerala Act was to arrive at the figure of compensation on certain principles, and a cut was then imposed on the figure thus arrived at and this cut pro gressively increased by slabs of Rs. 15,000.
In the present [1962] Suppl.
1 S.C.R. 829.
88 case , a converse method has been adopted and the provision is that first the net annual income is arrived at and thereafter compensation is provided for slabs of Rs. 5,000 each of net income.
For the first slab of Rs. 5,000, the compensation is 12 times the net annual income, for the second slab of Rs. 5,000 it is II times, for the third slab of Rs. 5,000 it is ten times and thereafter it is nine times.
Let us now work out this slab system.
Take four cases where the net annual income is respectively Rs. 5,000, Rs.10,000, Rs. 15,000 and Rs. 20,000.
The firstperson whose net annual income is Rs. 5,000 will get Rs.60,000 as compensation, the second person whose net annualincome is Rs. 10,000 will et Rs. 1,15,000, the third personwith a net annual income of Rs. 15,000 will get Rs. 165,000 and the person with a net annual income of Rs. 20,000 will et Rs. 2,10,000.
If the same multiplier had been applied as in the case of the first slab of Rs. 5,000 to the other three slabs also, these persons would have got compensation of Rs. 1,20,000, Rs. 1,80,000 and Rs. 2,40,000.
This will show that in effect there is a cut of about 4 per cent on the total compensation which corresponds to the purchase price in the Kerala Act in the case of a person with a net annual income of Rs. 10,000, of about 8 per cent in the case of a person with a net annual income of Rs. 15,000 and about 12 per cent in the case of a person with a net annual income of Rs. 20,000.
Though the manner of arriving at the total com pensation is ostensibly different from that provided in the Kerala Act, its effect is the same, namely, as the total net income goes up after the first slab of Rs. 5,000 there is a progressive cut in the total compensation just as was the case in the Kerala Act.
The argument that the cut is justified on the same basis as higher rates of income tax on higher slabs of income has already been rejected by this Court in Karimbil Kunhikoman 's case(1).
Therefore, for the reasons given in that case, we are of opinion that the provisions contained in section 50 read with Sch.
III of the Act with respect to compensation are discriminatory and violate article 14 of the Constitution.
Sections 5 and 50 are the pivotal provisions of the Act, and if they fall, then we are of opinion that the whole Act must be struck down as unconstitutional.
The working of the entire Act depends on section 5 which provides for ceiling and section 50 which provides for compensation.
If these sections are unconstitutional, as we hold they are, the whole Act must fall.
We therefore allow the petitions and strike down the Act as unconstitutional.
The petitioners will get their costs from the State of Madras one set of hearing fee.
Petitions allowed.
(1) [1962] Suppl.
1 S.C.R. 829.

summary/full:
The constitutionality of the Madras Land Reforms (Fixation of Ceiling on Land) Act, 1961 was attacked on the ground that it violated articles 14, 19, 31(2) of the Constitution.
Held (i) The provisions of section 5(1) of the Act result in discrimination between persons equally circumstanced and are thus violative of article 14 of the Constitution.
As this section is the basis of Chapter II of the Act, the whole chapter must fall along with it.
The ratio of Karimbil Kunhikoman vs State of Kerala [1962] Supp. 1 S.C.R. 829 applies with full force to the present case.
(ii)The provisions in section 50 read with Sch.
III of the Act with respect to compensation are discriminatory and violate article 14 of the Constitution.
Karimbil Kunhikoman vs State of Kerala [1962] Supp.
S.C.R. 829, followed.
(iii)Ss.
5 and 50 are the pivotal pro visions of the Act, and as they fall, the whole Act must be struck down as unconstitutional.


judgement:
Appeals Nos.
11 5 & 116 of 1963.
Appeals by special leave from the judgment and orders dated July 9, 1958, September 24, 1958 of the Union of India (Ministry of Steel, Mines and Fuel, New Delhi) and the Punjab High Court (Circuit Bench) at Delhi respectively.
G.S. Pathak, Rameshwar Nath and section N. Andley, for the.
appellant (in both the appeals).
section G. Patwardhan and B. R. K. G. Achar, for respondent No. 1 (in both the appeals).
I. N. Shroff, for respondent No. 2 (in C.A. No. 116/1963).
March 10, 1964.
The Judgment of the Court was delivered by AYYANGAR, J.
Civil Appeal No. 115 is by special leave granted by this Court under article 136 of the Constitution and is against an order of the Union of India (Ministry of Steel, Mines and Fuel) dated July 9, 1958 rejecting an application filed by the appellants under rule 57 of the Mineral Concession Rules, 1949 to review an order passed by the Government of Madhya Pradesh rejecting their application for the renewal of the Certificate of Approval granted to them.
The appellants filed a petition to the High Court Punjab under article 226 of the Constitution praying for a writ of certiorari to quash the above order of the Union of India.
This petition was dismissed by the High Court in limine and Civil Appeal No. 116 of 1963 is by special leave of this Court against this order of the High Court, Punjab.
It would thus be seen that both the appeals are directed to challenge the validity of the same order and we shall therefore deal with them together.
The appellants, who constitute a partnership, are engaged inter alia in the business of mining and they held a prospecting licence in the State of Madhya Pradesh.
They hold concessions in regard to prospecting and working minerals in several areas of the State to the details of which it is not necessary to refer.
Under the scheme of the Mines and Minerals (Regulation and Development) Act, 1948 (Act No. XLIII of 1948) and the Mineral Concession Rules, 1949 framed thereunder, in order that a prospecting licence may be granted to a person he has 99 to hold a certificate of approval from the State Government concerned and similarly the rules provide that no mining lease shall be granted to any person unless he held a similar certificate of approval.
To enable them to do the prospecting in lands in which they had obtained mineral concessions, the appellants applied for and obtained from the Government of Madhya Pradesh a certificate of approval under the Mineral Concession Rules from 1952 onwards.
The duration of the certificate is one calendar year and the same has to be renewed every year, if it is to be in force.
The original certificate granted to the appellants for the year 1952 was being renewed from year to year and as a result they held a valid certificate of approval up to the period ending on December 31, 1955.
Being desirous of having the same renewed for the following calendar year 1956 they made an application to the Government of Madhya Pradesh on November 22, 1955.
The information required by the form of application prescribed by the rules was furnished and the necessary documents were filed and this application was recommended by the District Officer, Bhandara.
The State Government, however, by an order dated September 21, 1956 rejected the application, the reason given being that the partners composing the firm had changed.
This order was communicated to the appellants on October 6, 1956 and thereupon the appellants made an application on November 15, 1956 to the Union Government for a review of the order of the State Government under rule 57 of the Mineral Concession Rules.
Rule 57(2) which was invoked by the appellants provides: "Where a State Government has failed to dispose of an application for grant of renewal of a certificate of approval or prospecting licence or a mining lease within the period prescribed therefor in these Rules, such failure shall, for the purpose of these rules, be deemed to be a refusal to grant or renew such certificate, licence or lease, as the case may be, and any person aggrieved by such failure may, within two months of the expiry of the period aforesaid, apply to the Central Government for reviewing the case.
" The procedure for review is laid down by rule 59 which ,reads: ,,Review Upon receipt of such application, the Central Government may, if it thinks fit, call for the relevant records and other information from the State Government, and after considering any explanation that may be offered by the State Government cancel or revise the order of the State Government, or pass such order as the Central Government may deem just and proper.
" L/P(D)1SCI 4(a) 100 Thereafter correspondence seems to have ensued between the Central Government and the Government of Madhya Pradesh in regard to the propriety of granting the application for review.
The appellants having come to know from a letter addressed to them by the Government of India that the State Government had been required to send a report of their remarks in connection with their application for review made enquiries as to what had happened and also requested that they might be informed as to the progress of their application and that they might be given an opportunity of a personal hearing at which they would be able to satisfy the Government about the genuineness of their case.
Some portions of this correspondence between the Government of India.
and the Government of the State as to the merits of the appellants ' application are now on record but it is common ground that the appellants were not informed of these documents prior to the order now impugned rejecting the application for review was passed.
On July 9, 1958 the application of the appellants was rejected by the Union Government, the order stating: "The Central Government have come to the conclusion that there is no valid ground for interfering with the decision of the Government of Madhya Pradesh rejecting your application for renewal of a certificate of approval for the year 1956.
" The appellants thereafter applied to the Government of India requesting for a copy of the report of the State Government on the basis of which the application was rejected.
The reply that the appellants received was that the Government of India regretted their inability to accede to their request.
It is the validity of this order dated July 9, 1958 that is challenged in appeal No. 115 of 1963.
Mr. Pathak, learned Counsel for the appellants, submitted that the Union Government when disposing of an application under section 57(2) in terms of rule 59 is acting as a quasi judicial authority and the order which was passed taking into consideration the report of the State Government and without their knowing the contents of the report and without affording them a reasonable opportunity of presenting their case was contrary to natural justice and was therefore void.
In this connection learned Counsel relied on the decision of this Court: Shivji Nathubhai vs The Union of India(1).
Mr. Pathak is well founded in his submission as to the nature of the jurisdiction exercised by the Union Government when disposing of an application for review under Rule 59 and the decision referred to does (1) ; 101 support him that the Central Government acting under the rule referred to is functioning as a quasi judicial authority.
It does follow therefore that they could not act on the basis of material as regards which the appellants had no opportunity to make their representation.
No doubt, the decision in Shivji Nathubhai v The Union of India and Ors.(1) was concerned with a case where an order had been passed prejudicial to the respondents before the Central Government without affording them an opportunity to meet the case of an applicant for review but the same principle would, in our opinion, apply even where a petition for review is rejected based on materials which were not made available to the applicant for review.
As we have already indicated, the State Government had refused renewal of the certificate of approval because they considered that there had been a change in the composition of the firm which destroyed its identity.
On the other hand, the case of the appellants was that the terms of the partnership deed made express provisions for the continuance of the identity of the firm, notwithstanding changes in the persons composing the firm by death, retirement or because of the accession of new members to replace deceased or retiring partners or even otherwise.
If the report of the State Government made any points against the representations made by the appellants, and these were being taken into consideration by the Union Government, in common fairness, the appellants were entitled to be informed as to what these were and an opportunity to point out how far they militated against the contentions raised by them.
Learned Counsel for the respondent Union of India, did not seek to support the position taken by the Central Government that they were justified in refusing to disclose the con tents of the report they obtained from the State Government which afforded them the factual basis on which they rejected the application for review.
We have therefore no hesitation in holding that the order of the Central Government now under appeal is vitiated as being contrary to the principles of natural justice, in that the decision was rendered without affording to the appellants a reasonable opportunity of being heard which is a sine qua non of a fair hearing.
The learned Judges of the Punjab High Court dismissed the petition filed before them under article 226, apparently be cause they proceeded on the view that the exercise of jurisdiction of the Central Government under rules 57 and 59 of the Mineral Concession Rules was really administrative in character so that the reasonable opportunity that is an essential requisite of quasi judicial procedure was not attracted to the (1) ; 102 case.
That was the view taken by that Court in the Shivji Nathubhai vs The Union of India and Ors.(1) which decision was reversed by this Court.
It might be mentioned that the decision of this Court was rendered subsequent to their judgment now under appeal and therefore the learned Judges had not the advantage of the pronouncement of this Court.
The result is that the appeals are allowed and order of the Central Government dated July 9, 1958 and of the High Court dated September 24, 1958 are set aside.
The Central Govern ment will consider the review application afresh and dispose of the same in accordance with law and in the light of the observations contained in this judgment.
The appellants are entitled to their costs in this Court (Hearing fee one set).
Appeals allowed.

summary/full:
The appellants constitute a partnership engaged in mining and they held a prospecting license as well as a certificate of approval from the State Government under the Mineral Concessions Rules, 1949 framed under the Mines and Minerals (Regulation and Development) Act, 1948.
The approval certificate was granted for one year and until December 1955 it had been renewed from year to year when the State Government refused to renew it on the ground that the partners composing the firm had changed.
Thereupon the appellants applied under r. 57 of the Minerals Concession Rules to the Union Government for the review of the order of the State Government refusing to renew the certificate of approval.
While this application Was pending the Union Government corresponded with the State Government and gathered information and received the latter 's remarks regarding the merits of the matter behind the appellants ' back.
The request made by the appellants for copies of the correspondence and for an opportunity to be heard was refused by the Union Government.
Ultimately the Union Government refused the review application on the ground that there was no valid ground to interfere with the decision of the State Government.
The present appeal was filed on special leave granted by this 'Court.
On behalf of the appellants it was contended that the Union Government while disposing of an application under r. 57(2) in terms of r. 59 acts as a quasi judicial authority and the ,order which was passed taking into consideration the report of the State Government behind the appellants ' back and without affording a reasonable opportunity for presenting their case was contrary to natural justice and was therefore void.
Held:(i) The Union Government when disposing of an ap plication for review under r. 59 is functioning as a quasi judicial authority.
Shivji Nathubhai vs Union of India, , relied ,on.
(ii)Though Shivji Nathubhai 's case was concerned with a case where an order had been passed prejudicial to the respon dents before the Central Government without affording them L/P(D)1 SCI 4. 98 an opportunity to meet the case of an applicant for review the same principle would apply even where a petition for review is rejected based on materials which were not made available to the applicant for review.
(iii) Applying the above principle to the present case the order of the Central Government is vitiated as being contrary to the principles of natural justice in that the decision was rendered without affording to the appellants a reasonable opportunity of being heard which is a sine qua non of a fair hearing.