JUDGMENT <NAME>, C.J.

1. This special civil application has been referred to a Full Bench by Mr. Justice <NAME> and Mr. Justice <NAME>. No question has been formulated by the learned Judges, but it seems that they took the view that the decision of <ORG> of this Court in <CITATION> ), requires reconsideration inasmuch as a decision of <ORG> in <NAME> v <NAME>, , seems to the learned Judges inconsistent with the view taken of the law in <NAME>'s case (A).

2. Now, curiously enough, the Advocate General emphatically asserts before us that not only the decision of <ORG> is not inconsistent with <NAME>'s case (A), but that the decision of <ORG> supports and reinforces the view taken by this Court in <NAME>'s case (A), and Mr. <NAME> not so emphatically also agrees that it is difficult to find any inconsistency between the judgment of <ORG> and the judgment in <NAME>'s case (A). But inasmuch as the matter has been referred to <ORG> and the matter has been argued at great length and the Advocate General tells us that a decision should be given by us because a large number of petitions are pending and the decision of which would be governed by the view we take in <ORG>, we must proceed to decide the question referred to us.

3. Now, to state the facts briefly, the petitioner was employed as a Khalasi in the Loco Shed of the Central Railway at Kalyan. He was employed on 3rd October 1947. On 26th October 1949 he was arrested on a charge under Sections 457 and 380 of the Indian Penal Code and placed before the First Class Magistrate at Kalyan, and it appears that he was released on bail on 4th November 1949. On 6th May 1953 he was discharged by the learned Magistrate and the learned Magistrate gave him, as it were, a clean bill and said in his judgment that there would be no objection to his being reinstated by <ORG>. He resumed his work -- and we are using a neutral expression -- on 20th October 1953, and he filed a petition before the <ORG> under the Payment of Wages Act claiming wages from the period 25th October 1949 to 19th October 1953. The <ORG> decreed his claim. There was an appeal to <ORG> and the learned District Judge took the view that the <ORG> under the Payment of Wages Act had no jurisdiction to deal with this matter. Thereupon the employee filed a petition under the Constitution before <ORG> consisting of Mr. Justice <NAME> and Mr. Justice <NAME> and it is this Bench that has referred the matter to us.

4. Now, we should have thought, but for the fact that we are sitting here as a Full Bench, that the law as to the jurisdiction of the <ORG> under the Payment of Wages Act is fairly well settled. If it is necessary at all, we will reiterate it as briefly as possible. The leading case on the subject is <CITATION> ), where <ORG> was for the first time called upon to consider the scheme of the Act and the jurisdiction of the <ORG> under the Act, and in that decision we laid down that the <ORG> had no jurisdiction to decide whether the services of an employee had been rightly or wrongly terminated or whether the dismissal was lawful or unlawful. We said that such a question would not come within the purview of the special tribunal set up under the Act. Although that was the question that arose for our determination, we also made it clear as to what was the nature and ambit of the jurisdiction of the <ORG>, and in brief what we said was that the primary function of the <ORG> was to determine what the wages of the employee were and whether there had been a delay in payment of those wages or a deduction from those wages, and in order to determine the wages it may be necessary to determine what the terms, of the contract were under which the employee was employed and under which he was claiming his wages. It may also be necessary, we pointed out, to decide whether the employee was employed by the employed or not because the question of a contract can only arise provided there was employment. Therefore, in order to determine what the contract was, what the terms of the contract were, what were the wages due under the contract, it might become necessary for the <ORG> to determine whether in the first place there was an employment or not.

5. The next decision which followed upon <NAME>'s case (C), was the case of <NAME> v. <NAME>, (D-E). That was really a logical extension of the principle laid down in <NAME>'s case(C), because in that case there was a suspension of an employee by <ORG> and the contention put forward was that in view of the suspension no claim could be made by the employee in respect of the period of suspension, and what the Court held was that it was open to the <ORG> under the Payment of Wages Act to consider whether during the period of suspension the relationship of master and servant subsisted between the employer and the employee and if such relationship subsisted, notwithstanding the suspension the employer was liable to pay to his employee wages for that period. Here again, therefore, the point that we were emphasising was that It was competent to the <ORG> to determine whether during the relevant period the employee was in fact employed by the employer.

6. Then a third judgment to which reference might be made is <CITATION> ). In that case certain employees of <ORG> who had migrated to Pakistan returned and purported to exercise the option given to them to be re-employed by <ORG>, and they claimed the wages of the period antecedent to the time when they exercised the option, and the question that arose first before my brother Mr. Justice <NAME> was whether the <ORG> under the Payment of Wages Act had jurisdiction to decide this question, and the learned Judge at page 864, with respect, correctly enunciates the principles emerging from the authorities that we have considered. "Again, it is well established that it is open to the <ORG> under the Payment of Wages Act , in order to decide what sums are payable as wages, to determine whether a person has been employed or not, because the question of contract of employment can only arise if there was at the relevant time a subsisting contract of employment." Therefore, it will be noticed that again in this case the emphasis is on the question as to whether there was an employment by the. employer of the employee or, in other words, whether there was relationship of master and servant between the employer and the employee or, again to use different language, whether there was a subsisting contract of employment between the employer and the employee. Mr. Justice <NAME> held in favour of the employee. There was an appeal and <ORG> upheld the view taken by the learned Judge.

7. Then we come to (A). In that case there was no dispute as to employment. The dispute was whether the employee was entitled to receive wages under a contract which he had set up or wages under a contract which was set up by the employer. These two contracts were relied upon by the employee and the employer in respect of the same period for which wages were claimed by the employee and what the Court held was that when there is a dispute as to which is the contract that governs the relationship of the parties and if two rival contracts are in the field, then the <ORG> under the Payment of Wages Act has no jurisdiction to decide which of the contracts should regulate the rights of the parties, and the distinction that was drawn in that case was that whereas the <ORG> could determine what was the contract, it could not determine which was the contract. As the Advocate General has rightly pointed out, in <NAME>'s case (A), also we enunciated the principle that was laid down in <NAME>'s case (C). At page 901 (of Bom LR): (At p. 733 of AIR), of the judgment the ratio of <NAME>'s case (C), is thus stated that the jurisdiction of the <ORG> really is to determine the terms of the contract in so far as they relate to the payment of wages and in so far as he has to decide the liability of the employer to pay wages under the terms of the contract.

8. Turning to the decision of <ORG>, which has necessitated this Full Bench, in , the question that arose for the consideration of the learned Judges was an entirely different question. The employee there was a carpenter employed on daily wages. <ORG> subsequently introduced a scheme which created a cadre of skilled labourers on the scale of monthly rates of pay and admitted to it only those who passed a test. The employee did not pass the test and continued to serve as an employee on daily wages, and he sued <ORG> before the <ORG> under the Payment of Wages Act to recover the additional amount of wages that would have become payable to him had he been taken up on the cadre of monthly rated employees, complaining that he was wrongly not treated as such by the <ORG>, and <ORG> held that this was not a claim for actual wages but it was a claim for potential wages and that the <ORG> under the Payment of Wages Act had no right to determine whether the employee was entitled to be put on the cadre which had been created; that was the function of <ORG> and not the <ORG> under the Payment of Wages Act . In this connection <ORG> at page 745 (of Bom LR): (at p. 416 of <ORG>), gives expression to the same principle that has been enunciated both in <NAME>'s case (C) and <NAME>'s case (A), and what Mr. Justice <NAME> says is :

"But it is said on behalf of the respondent that the <ORG> has the jurisdiction not only to make directions contemplated by Sub-section (3) of Section 15 to refund to the employed person any amount unlawfully deducted but also to find out what the terms of the contract were so as to determine what the wages of the employed person were. There is no difficulty in accepting that proposition."

Now, that is exactly the proposition to which legal effect was sought to be given in both the cases of this Court to which reference has just been made. Therefore, we agree with the Advocate General that it is impossible to contend that <NAME>'s case (B), has in any way undermined the authority of <NAME>'s case (A). On the contrary, <NAME>'s case (B), reinforces the decision given by this Court. This was also the view taken by a Division Bench of this Court consisting of Mr. Justice <NAME> and Mr. Justice <NAME> in Special Civil Appln. No. 2520 of 1956 on 23-11-1956 (G), and Mr. Justice <NAME> delivering the judgment points out that in all cases properly filed before the authority there should be no dispute about the contract itself, and the learned Judge, with respect, rightly explains the decision in <NAME>'s case (A) by pointing out that when the employer and the employee come before the authority and rely on different contracts, it is not within its jurisdiction to decide which of the two contracts is subsisting and under which of them the employer is liable to pay wages. The learned Judge refers to <NAME>'s case (B) and points out that the limits of the jurisdiction of the authority under the Payment of Wages Act are no longer in doubt.

9. Now, this being the settled law, let us turn to the facts before us and apply that law to those facts. It is clear that the claim of the employee was made on the basis that he continued to be in the employment of the railway authorities during the relevant period, viz., the 25th October 1949 to the 19th October 1953, because rightly or wrongly his case was that during that period he was under suspension and did not cease to be in the employment of <ORG>. Let us see what the answer of <ORG> was to this claim. They denied in para. 3 of the written statement that the employee was in their employment, and in para. 5, which is the most material paragraph and on which great reliance has been placed by the Advocate-General, <ORG> say :

"After a period of three months he was treated as 'absconding' and a temporary employee engaged in the vacancy. His name was automatically struck off the attendance register as nothing was heard about him. He cannot therefore be regarded as an employee of the opposite party for any length of time."

And in para. 9 <ORG> case is that the employee was re-employed as a fresh entrant on the 20th October 1953, and they end the written statement by saying:

"As he was neither an employee nor can be said to be 'in service' he is legally not entitled to any 'wages'; neither he can claim them under the Payment of Wages Act ."

In our opinion, on these pleadings the issue directly and substantially arises as to whether the employee was in the employment of <ORG> during the relevant period, and there can be no doubt that that is an issue which the <ORG> under the Payment of Wages Act can try and determine. It is not the case of <ORG> that the services of the employee were terminated, nor have <ORG> contended that he was dismissed. They have relied on the fact that automatically his name was struck off from the attendance register for the purpose of contending that he must be regarded as not being an employee during the relevant period. We agree with the Advocate-General that if <ORG>' case was that the employee's services were terminated or that he was dismissed or discharged, then in view of <NAME>'s decision (C), that was an issue which could not have been tried by the <ORG> under the Payment of Wages Act . But when the dispute and controversy between the parties is whether the employee was in employment or not, that surely is an issue which is directly within the jurisdiction and competence of the <ORG>. The Advocate-General has laid great emphasis on the case of the employee that he was reinstated and on the case of <ORG> that he was re-employed, and says the Advocate-General that it is clear on these pleadings that two contracts are in the field, and that the employee is relying on the original contract under which according to him he was continued and reinstated, and <ORG> are relying on another contract under which he was re-employed at the relevant date. In our opinion, that argument is based on a misapprehension. Whether the employee was reinstated or re-employed depends upon the fact as to whether the employee continued to be employed during the relevant period. If the employee continued to be employed during the relevant period, then he was reinstated as contended by the employee. If, on the other hand, he did not continue to be employed, then the employment having come to an end there was a case of re-employment as alleged by <ORG>. It is also erroneous to suggest that there are two conflicting contracts in the field. There are not. If the employee was in the employment during the relevant period, then the only contract is the original contract, the terms of which have to be construed in order to determine what wages the employee was entitled to. It is not suggested by <ORG> that if the employee was in the employment during that period any other contract regulated the rights of parties. The second contract could only come into play provided the employee was not in employment during the relevant period. But if the employee was not in employment during the relevant period, no further question survives and it would not be necessary to determine what the terms of the subsequent contract were, because if the <ORG> holds that the employee was not in service the claim made by the employee with regard to wages must fail. Therefore, we cannot accept the contention of the Advocate-General that his case falls within the principle of <NAME>'s case (C) for the reason that no issue as to the termination of the services of the employee can arise on those pleadings. We might point out that <ORG> have not even indicated when his services were terminated. Nor does the case fall within the principle of <NAME>'s case (A) because, as just pointed out, we do not have here a case where the <ORG> has to determine which contract regulates the rights of the parties.

10. Turning to the judgment of the <ORG> under the Payment of Wages Act , the view taken by the <ORG> is that the employee should be deemed to have been suspended and having been deemed to have been suspended, under the rules in the Railway Manual he was entitled to full salary as he was reinstated and as no obloquy attached to his conduct in respect of which he was charged, he indeed having obtained an honourable discharge from the Magistrate, The <ORG> may be right or wrong on the facts, but his decision turned on this that on his construction of the rules and of the attendant circumstances he took the view that the employee was in the service of the Railway Authorities during the relevant period and he also determined the quantum of wages on a construction of the contract as full salary during the period. When the matter went to the learned District Judge, the view that he took was this -- and to quote from his judgment:

"On these pleadings one of the issues that arise for consideration is: Whether the respondent was discharged from service and re-employed as the appellant contends or was suspended from service and was reinstated. This issue involves the question whether the respondent was really discharged from service and if so whether he was legally discharged. And, in my view, this issue is beyond the competence of the <ORG> under the Payment of Wages Act ."

Now, with respect to the learned District Judge he would be quite right if the issue that was involved was the issue set out by him. But, as we have already pointed out, the question that had to be considered by him and had to be considered by the <ORG> was not whether the employee was discharged from service and if so legally discharged, but what had to be considered was whether the employee was employed by <ORG> during the relevant period.

11. The Advocate-General has drawn our attention to the relevant rules and has pointed out that even suspension from service does not automatically entitle the worker to wages unless he actually works, and he has also drawn our attention to the fact that even if there is a case of reinstatement it is for <ORG> to determine whether he should get his full wages or not. Now, these are matters affecting the merits of the case. They go to determine what the quantum of wages is to which the employee would be entitled. It may be that the learned District Judge to whom we are proposing to send the matter back may take the view that during the relevant period there was no employment and that the relationship of master and servant did not subsist between the employee and <ORG>, and even if he takes the view that the employment continued he may take the view on a consideration of the relevant rules that the employee was not entitled to the wages because he did not do any work or that he was entitled not to full wages as claimed by him but to much less. But these are all questions of determining the wages due to the employee on a construction of the terms of the contract. These are not questions which affect the jurisdiction of the <ORG> under the Payment of Wages Act .

12. Therefore, in our view, the learned District Judge was in error in holding that the <ORG> under the Payment of Wages Act had no jurisdiction to entertain the application Sled by the employee. We will, therefore, set aside the order of the learned District Judge send the matter back to him, and direct him to try the following issues:

(1) Whether the employee continued to be in the employment of <ORG> during the relevant period, viz., 25th October 1949 to 19th October 1953?

(2) If he continued to be in employment what are the wages, if any, to which the employee is entitled under the terms of the contract subsisting between the employee and <ORG>?

13. The petitioner to get the costs of the petition. No order as to costs of the hearing before us.

14. Case sent back.


PETITIONER: BABURAM Vs. RESPONDENT: C C JACOB & ORS. (WITH C.A NO.10909/96) DATE OF JUDGMENT: 18/03/1999 BENCH: <NAME>, <NAME> JUDGMENT:

SANTOSH HEGDE, J.

C.A. Nos.10658-59/96 :

These appeals arise out of the order dated 22.9.1995 made by <ORG>, <ORG>, (for short `the tribunal') in O.A. Nos.186/94, 961/95 and 1192/94. The applicants therein questioned the selection made by <ORG> and consequential promotion of the appellant to the post of Superintendent of <ORG> in a vacancy reserved for Scheduled Castes. The contention before the tribunal was that the percentage of reservation has always to be worked out in relation to the number of posts which formed the cadre strength and the said reservation is not to be made with reference to a vacancy.

Since the law in regard to the above stated position was nebulous, <ORG> of this Court in the case of <CITATION> . (1995 2 SCC 745) settled the said issue holding that such reservation is in relation to the number of posts comprising in the cadre and not in relation to vacancies. The judgment of <ORG> was delivered on 10.2.1995. This Court in the said judgment after taking into consideration the fact that the law was not clear till that date, observed thus : "We, however, direct that the interpretation given by us to the working of the roster and our findings on this point shall be operative prospectively." The question that arises for our consideration in this case is: was it open to the tribunal to apply the law laid down in <NAME> case (supra) to the facts of the case in hand. The brief facts necessary for the purpose of deciding this question are that in June, 1993, <ORG> (for short `the <ORG>') considered the suitability of candidates eligible for promotion to four vacancies which arose during 1993-94 in the cadre of Superintendent of <ORG> (Preventive) from the post of Preventive Officers in which proceedings of the <ORG> the appellant was chosen to be promoted against a reserved vacancy earmarked for the Scheduled Castes. The said decision of the <ORG> was challenged before the tribunal on 27.1.1994 wherein the applicants contended that they are entitled to be considered for promotion to the category of Superintendent of <ORG> in the concerned vacancy, treating these vacancies as unreserved. Consequently, they prayed that their case be considered for promotion on merits. During the pendency of the applications before the tribunal, the appellants herein came to be promoted on 26.6.1994 as against a reserved vacancy which arose on 1.6.1994. The tribunal on 22.9.95 following the judgment of this Court in the <NAME>'s case (supra), allowed the applications and held that there had been an erroneous application of the principle of reservation resulting in appointment of Scheduled Caste candidates in excess of the quota earmarked for them. It directed the concerned respondents to recalculate the entitlements of different categories and take further action applying the quota rule to the cadre and not to the vacancies as they arose. It further directed that till the quota is correctly maintained, no appointment will be made from the groups which have exceeded the quota reserved for them. As noted above, the finding of the tribunal is based on the ratio of the judgment laid down by this Court in <NAME>'s case (supra). The contention of the appellant in these appeals is that the judgment in <NAME>'s case was made effective prospectively, hence, the same could not have been applied to the promotion of the appellant. This contention was negatived by the tribunal on the ground that the decision of the <ORG> in selecting the appellant does not amount to an appointment and in view of the fact that the appellant's promotion was made subsequent to filing of the petition, the appellant cannot claim the benefit of the prospectivity given to the <NAME>'s judgment by this Court. We are unable to agree with this view of the tribunal. It is to be noted that the prospectivity given to <NAME>'s case was obviously on the ground that there was a doubt in regard to the position of law until the same was clarified by this Court in <NAME>'s case. The decision of the <ORG> was taken in June, 1993; much prior to the judgment in <NAME>'s case. It is only pursuant to the decision of the <ORG>, the appellant came to be promoted on 27.6.1994 which is also a date prior to the delivery of the judgment in <NAME>'s case. In our opinion, the prospectivity was given to <NAME>'s case only to see that status prevailing prior to the judgment in <NAME>'s case should not be disturbed. The prospective declaration of law is a devise innovated by the apex court to avoid reopening of settled issues and to prevent multiplicity of proceedings. It is also a devise adopted to avoid uncertainty and avoidable litigation. By the very object of prospective declaration of law, it is deemed that all actions taken contrary to the declaration of law prior to its date of declaration are validated. This is done in the larger public interest. Therefore, the subordinate forums which are legally bound to apply the declaration of law made by this Court are also duty-bound to apply such dictum to cases which would arise in future only. In matters where decisions opposed to the said principle have been taken prior to such declaration of law cannot be interfered with on the basis of such declaration of law. In the instant case, both decisions of the <ORG> as well as the appointing authority being prior to the judgment in <NAME>'s case, we are of the opinion that the tribunal was in error in applying this decision. For this reason, these appeals succeed and are hereby allowed; setting aside the orders and directions made by the tribunal in OA Nos.186/94, and 961/95.

C.A. No.10909/1996 :

In view of our judgment in CA Nos.10658-59/96, this appeal also succeeds and is hereby allowed.


CASE NO.: Appeal (civil) 11768 of 1996 PETITIONER: <ORG> & <ORG>. Vs. RESPONDENT: STATE OF U.P. & ORS. DATE OF JUDGMENT: 14/02/2001 BENCH: V.N.Khare, S.N.Variava JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J J U D G M E N T S. N. VARIAVA, J.

This Appeal is against a judgment dated 10th July, 1996. By this judgment a number of Writ Petitions filed before <ORG> have been dismissed. The Petitioners in all the Writ Petitions were doing the business of preparing tanned and finished leather. The question involved in all the four Petitions was whether 'tanned leather' can be subjected to Uttar Pradesh Mandi Fee payable under the provisions of U.P. Krishi Utapadan Mandi Adhiniyam, 1964 (hereinafter for the sake of convenience called the said Act). For an understanding of this question it is necessary to see Section 2 (a) of the said Act which reads as follows : "'Agricultural produce' means such items of produce of agriculture, horticulture, viticulture, apiculture, sericulture, pisciculture, animal husbandry or forest as are specified in the Schedule, and includes admixture of two or more of such items, and also includes any such item in processed form, and further includes Gur, Rab, Shakkar, Kandsari and jaggery".

Schedule G of the said Act deals with "Animal Husbandry". Serial No. 11 thereunder includes 'hides and skins'. The question which had been raised in the Writ Petitions and which is raised here is whether the term 'hides and skins' includes 'tanned leather'. Mr. <NAME> has submitted that admittedly the term 'tanned leather' has not been used either in the Act or in the Schedule. He admits that under Section 2(a), not just the items which have been specified in the Schedule but also an admixture of two or more such items or any of those items in a processed form, would also be included. He, however, submits that tanned leather is not 'hide or skin' and is not derived by processing 'hide' or 'skin'. He submits that 'tanned leather' is a manufactured commodity. He submits that "tanned leather" is an entirely different commodity from 'hide' or 'skin'. In support of his contention that 'tanned leather' is a different commodity from 'hide' and 'skin' he relies upon a Judgment of the Constitution Bench of this Court in the case of <CITATION> reported in 1964 (8) S.C.R.

217. In this case the Petitioners were dealers in skins in the State of Madras. They purchased raw skins from places both within and outside the State of Madras, tanned those skins and sold them through their agents in Madras. They were assessed to sales tax under the provisions of the Madras General Sales Tax Act, 1939 and under rules 16(2)(ii) of the Madras General Sales Tax (Turnover and Assessment) Rules. They filed the Petition under Article 32 contending that Section 2 of the Madras General Sales Tax (Special Provisions) Act, 1963 was ultra vires the Constitution. That challenge was upheld on the ground that Section 2(1) discriminated against imported hides and skins and local hides and skins. It was however held that Rule 16(1) did not become invalid because Rule 16(2) had been held to be invalid. Under the Rules tax was levied on sale of hides and skins in raw condition but no tax was levied on sale of hides and skins in tanned condition. Therefore, the Rules themselves made a distinction between hides and skins in raw condition and hides and skins in tanned condition. It was contended that hides and skins whether tanned or untanned constituted one commodity and, therefore, there could be no tax on sales of hides and skins in raw condition when there was no tax on sale of hides and skins in tanned condition. It was held that they were two different commodities and constituted two separate categories for purposes of taxation. It was so held because the two were treated differently in the Rules. Reliance was also placed upon the authority in the case of <CITATION> . reported in 1998 (1) S.C.C. 437. This again was a case under the T.N. General Sales Tax Act, 1959. The question here was whether raw hides and skins and dressed hides and skins were different commodities. The <ORG> following the decision in <ORG> (<ORG>) held that dressed hides and skins were different goods from raw hides and skins. It may be noted that it was so held in the context of the definition as given in Item 7 of the Second Schedule of the said Act, which provided both for raw hides and skins as well as dressed hides and skins. Thus the Act itself made a distinction between raw hides and skins and dressed hides and skins. It is on that basis that the <ORG> held that they were not the same commodity. Mr. <NAME> also placed reliance in the case of <CITATION> reported in AIR 1994 S.C. 64. This was a case under the Central Sales Tax Act and the question for consideration was whether the term "Wheat", within the meaning of Section 14(i)(iii) of that Act, included "flour, maida and suji" which were derived from Wheat. It was held that flour, maida and suji are different and distinct goods from wheat. It was held that flour, maida or suji were not included in the Act and they would not fall within the term "Wheat" as defined in the Act. It must immediately be noted that the Act only contained the term "Wheat". That Act did not cover "Wheat" in its processed form. It is because the Act did not cover "Wheat in a processed form" that the <ORG> held that flour, maida and suji were not wheat. Reliance was also placed upon the judgment of this <ORG> in the case of <CITATION> . reported in 2000 (6) S.C.C. 264. In this case the question was whether fruit drinks "Frooti" and "Appy" fell within the term agricultural produce under the Bihar Agricultural Produce Markets Act, 1960. This <ORG> held that even though these "Frooti" and "Appy" were manufactured out of mango pulp and apple concentrate but after the mango pulp and apple concentrates were processed and beverages were manufactured, the products becomes entirely different from the fruits that is the mango and apple. It was held that even though the basic character of the mango pulp and apple concentrate may be present in beverages, but the end products were not fruits which were specified in the Schedule. On this basis it was held that the products like "Frooti" and "Appy" were not covered by the Item Agricultural produce as defined in <CITATION> of that Act. Mr. <NAME> also relied upon the case of <CITATION> reported in AIR (1992) S.C. 224 for the proposition that there is a difference between 'manufacture' and 'processing'. In this case the question was whether an industry which manufactures sugar from sugar cane was covered by Entry 15 of Schedule I to the Water (Prevention and Control of Pollution) Cess Act , 1977. The relevant Entry under which the industry was sought to be brought in was item 15 of Schedule I which reads as "processing of animal or vegetable products industry". This <ORG> held, in para 13, that the term 'processing' as normally understood would mean that even after processing the product would retain its character. The <ORG> held that 'processing' essentially effectuates a change in form, contour, physical appearance or chemical combination or otherwise by artificial or natural means. The <ORG> held that a 'manufacture' implies a change but that every change was not 'manufacture'. The <ORG> held that for 'manufacture' something more was necessary and that there must be a transformation and a new and distinct article must emerge having a distinctive name, character or use. Based on this authority it was submitted that tanned leather was a different article and a distinctive commodity having a distinctive name, character and use and that tanned leather was a manufactured item. In our view the authority would, if anything be against the Appellants. Tanned leather retains its basic character namely, it remains hide or skin, though there is some change in form and physical appearance. Lastly reliance was placed upon the case of <ORG> and another, etc. v. <ORG>, etc. reported in AIR (1963) S.C. 791. This was a case under the Central Excises and Salt Act and the question was whether the Raw oils which were purified but not deodorised in the process of manufacture of Vanaspati was covered by the expression "non- essential vegetable oils" in Item 12 of Schedule I of that Act. In this case it was held that processing cannot be equated to manufacture. It was held that the word "manufacture" is generally understood to mean as "bringing into existence a new substance" and does not mean merely "to produce some change in a substance". In our view this authority would also show that in fact there is no manufacture but mere processing of hides and skins to bring them into a tanned state. Based upon the above authorities Mr. <NAME> submitted that 'tanned leather' was not an 'agricultural produce' inasmuch as it is a different item or commodity from hide and skin and it is an item which is not a processed form of hide or skin but an item which is manufactured. He submits that for the above reasons the Judgment of the High <ORG> cannot be sustained and requires to be set aside. As against this Mr. <NAME> submitted that definitions and meanings given in other Acts or in the context of other Acts can be of no assistance. He submits that one has to look at the provisions of the said Act itself. He submitted that the term 'agricultural produce' had been given a wide meaning in Section 2 (a) of the said Act. He points out that it is a definition which is not an exhaustive definition but is an inclusive definition. He submits that any item would be an 'agricultural produce' if it is specified in the Schedule or if it is an admixture of two or more items specified in the Schedule or if it is a processed form of any of the items specified in the Schedule. He points out that in <ORG> all Acts are enacted in Hindi even though an equivalent English version is printed. He points out that in the Hindi version the terms used are 'Khal Va Chamra'. He submits that a dictionary meaning of the term 'Chamra' is leather and therefore the Hindi version clearly shows that leather was meant to be included. He admits that if there was a conflict between an Hindi version and an English version then by virtue of Article 384 of the Constitution of India the English version would prevail. He submits that if there is no conflict, then the Hindi version can be looked at in order to determine any ambiguity or to find out if any item is included or not. In support of his submission he relies upon the case of <CITATION> ., etc. reported in 1984 (4) S.C.C. 516. This was a case under the said Act. The question was whether 'Dal' of legume is an agricultural produce and therefore eligible to market fee. In that case it had been argued, as in the present case, that as 'Dal' has not been specified in the Schedule and it was a distinct commodity no market fee could be levied. This <ORG> held that to resolve a controversy of this nature one has to seek light from the definition of expression 'agricultural produce' as set out in Section 2(a) of the Act. This <ORG> held that no resort can be taken to decisions under entirely different statutes, such as the sales tax laws, to find out whether the product were same or two different and independent products commercially so recognised. It was held that it was an indisputable canon of construction that where an expression is defined in the statute, unless there is anything repugnant in the subject or context, the expression had to be construed as having the same meaning assigned to it in the dictionary clause of the statute. It was held that 'Dal' was nothing else but a whole grain split into two folds in its processed form acquired by manufacturing process and that was therefore an agricultural produce. After so holding this <ORG> held as follows : "14. This very conclusion can be reached by a slightly different route. As is well-known, the legislative enactments in the State of <ORG> are enacted primarily in Hindi language and its official and authentic translation in English is simultaneously published. Bearing this in mind, we turn to the notification dated April 11, 1978 specifying legumes therein enumerated as specified agricultural produce for various Market Areas. The heading under which various legumes are enumerated is 'Dwi Daliya Utpadan'. This tongue twister was explained to us to mean that legume itself is Dwi Daliya Utpadan i.e., the whole grain is made of two folds. Ek daliya grain is without a fold. Dwi Daliya is a grain composed of two folds and certainly not many folds. Concise Oxford Dictionary specifies the meaning of legume to be "fruit, edible part, pod, of leguminous plant; vegetable used for food," and 'leguminous' to mean "like of the botanical family of pulse". And in common parlance 'pulse' connotes legume and denotes dal of legume. Reverting however, to the heading under which legumes are enumerated in 1978 notification, it must be confessed that it clearly connotes the meaning to be given to the whole grain and denotes dal i.e. split folds as specified agricultural produce. The Hindi protagonists used the expression 'Dwi Daliya Utpadan' meaning thereby double folded grain called Gram, Peas, Arhar, Moong etc. on a strict construction, the two dals i.e. two parts forming the whole grain both are comprehended in the expression 'Dwi Daliya Utpadan'. Therefore, it is crystal clear that while enumerating legumes in the Schedule and reproduced in the 1978 notification to make them specified agricultural produce, the framers intended to include both the grain as a whole and its split parts the dal. And when the agricultural produce enumerated in the Schedule such as Gram including its processed part is reproduced in the notification as Dwi Daliya Utpadan, the dal of each of the legumes therein mentioned became specified agricultural produce."

It is thus to be seen that the <ORG> derived support for its conclusion by looking at the Hindi version of the said Act on the ground that it was well known that in the State of U.P. enanctments were in Hindi language. Reliance was also placed upon the case of <CITATION> . reported in 1985 (2) S.C.C. 485. This was also a case under the said Act. The question before the <ORG> was whether 'Khandsari sugar' manufactured by an open pan process was an agricultural produce within the meaning of the said Act. In this case also based upon a Sugarcane (Control) Order, 1966 and U.P. Khandsari Sugar Manufacturer's Licensing Order, 1967, both of which define 'khandsari sugar' it had been contended that 'khandsari sugar' was a distinct and a separate commodity from 'khandsari' as defined in Section 2(a) of the said Act and therefore no market fee could be levied on 'khandsari sugar'. This contention was negatived and it was held that 'khandsari' was a genus and 'khandsari sugar' was a species and in the market both were merely known as 'khandsari'. It was held that the word 'khandsari' was wide enough to cover 'khandsari' produced by any process regardless of its quality or variety. It may be mentioned that a challenge to Section 2 (a) on the ground that it was discriminatory and violative of Article 14 was also repelled. Reliance was also placed upon the case of <CITATION> . reported in 1993 Supp (3) S.C.C. 361(II). This again was a case under the said Act. The question was whether 'gur-lauta', 'raskat', 'rab- galawat' and 'rab-salawat' were 'agricultural produce' under the said Act. In this case it was noted that sugarcane was an agricultural produce out of which juice was extracted. The juice was then thickened by dehydration and when it reached a particular pigment it took the form of 'rab' which is a semi-solid form of the sugarcane juice. After boiling this 'rab' was put in a crystalliser where it was allowed to get cooled and crystals were formed which were then rotated in the crystalliser. The crystallised rab was then put into centrifugal machines in which through the process of infusion of sulphur, the sugarcane juice was cleaned and whitened. The 'rab' which was not put into the centrifugal machine but which was dehydrated and allowed to be hardened by the open pan process became 'gur', which was sold for home consumption. The 'rab' which was not allowed to be hardened was also sold in semi-solid form but certain persons who wanted to make further profits put this 'rab' into centrifugal machines and by the process of infusion of sulphur they obtained 'khandsari' in the dry powder/crystallised form and the waste of 'rab' which was obtained in the liquid form known as 'molasses'. 'Molasses' was further utilised by many people by boiling in the open pans and the same was again re-processed by cleaning and dehydrating and later by sulphitation was taken in powder form. This then was also sold in the market as inferior quality called 'rab-galawat'. It was held that there was a further inferior quality of rab called 'rab-salawat'. The contention was that 'gur-lauta', 'raskat', 'rab-galawat' and 'rab-salawat' were all different commodities which were not the same as 'gur' or 'rab' and that therefore no market fee could be levied on those commodities. This <ORG> held that a wide interpretation had to be given to Section 2(a) of the said Act as the meaning was exhaustive and not restricted to the items included in the Schedule. It was held that items which came into being in a processed form would be included. It was held that these items were 'agricultural produce' and market fee could be levied on these items. Mr. <NAME> then relied upon the case of State of Tamil Nadu etc. vs. <ORG> etc. reported in 1989 (1) S.C.C.

724. He clarified that this was a case under the Central Sales Tax Act and that he was not saying that this would therefore be an authority for considering the definition of the term "agricultural produce" under the said Act. He submitted that in this case certain opinions of <ORG> as well as glossary of terms published by <ORG> had been reproduced. He stated that he was merely bringing those portions of the judgment to the attention of the <ORG>. In this behalf he showed to the <ORG> the paragraphs 6, 9, 10, 11 and 13, which read as follows : "6. Turning to coloured leather, we may, at the outset, refer to a very important circumstance referred to by the respondents. When the CST Act came into force on April 1, 1957, a question was raised regarding the meaning of the expression 'hides and skins in dressed state' used in Section 14 . The matter was referred to the leather development wing of <ORG> which gave the following opinion :

Hides and skins are obtained from either slaughtered or dead animals. The raw hides and skins thus obtained are known to be in the Green State. These are easily putrescible; if proper precautions are not taken they would easily rot and decay. Since tanneries are not always located very near the source of raw hides and skins, the question of preserving them for a temporary period till they reach a tanning centre assumes importance. Raw hides and skins are 'cured' by either wet salting, dry salting or drying. In the 'cured state' the raw materials can be preserved for a temporary period. In the third stage of temporary preservation, the hides and skins are 'pickled'. During the next stage they are tanned in which state they can be preserved almost indefinitely. These tanned hides and skins are processed further to yield Dressed Hides and Skins which are ready for use. 'Dressed' or finished material could also be preserved almost indefinitely.

From the above, it will be seen that the expressing 'Hides and skins in the raw or dressed state' refers at one end to the raw material obtained from the slaughtered or dead animals and at the other to the tanned and finished material; the expression, therefore, seems to include the other intermediate stages indicated in the previous paragraphs. Dressing, according to the authoritative interpretations, would mean the conversion of tanned hides and skins by further suitable processing into leathers of different types which are ready for use (vide SBT/18(495)/14) of November 11, 1957).

9. Can it then be said that the view expressed above is clearly wrong? We think not; on the contrary, it is seen to be quite correct. The statutory expression refers to "hides and skins in a dressed state". The guidelines issued for identification of 'finished' leather for exports by <ORG> (<ORG>) refer to as many as 19 operations or processes undergone during manufacture of 'finished leather' but 'dressing' is not one of them. A glossary of terms relating to hides, skins and leather published by the <ORG> in 1960 contains the following definitions:

CRUSTS: (Crust Leather) - Tanned hides and skins without any finish.

CURRYING: A series of dressing and finishing processes applied to leather after tanning in the course of which appropriate amounts of oils and greases are incorporated in the leather to give it increased tensile strength, flexibility and water resisting properties.

DRESSED HIDES: Tanned hides, curried or otherwise finished, for various purposes, such as belting, harness and saddlery, travel goods and for upholstery.

DRESSING LEATHER: Vegetable tanned hides which may be dressed to suit the purpose for which they are to be used, such as for harness, saddlery and other mechanical purposes.

LEATHER: The skin or hide of animals prepared by tanning, which still retains its original fibrous structure more or less intact, but from which hair or wool may or may not have been removed and which has been treated so as to be imputrescible even after treatment with water.

10. The earlier glossary of such terms published by <ORG> defines 'dressing' as a "general term for the series of processes employed to convert certain rough tanned hides and skins and/or crust leather into leather ready for use". Also, "Leather" is defined as "a general term for hide or skin which still retains its original fibrous structure more or less intact, and which has been treated so as to be imputrescible even after treatment with water". The hair or wool may or may not have been removed. Certain skins, similarly treated or dressed, and without the hair removed, are termed 'fur'. The Dictionary of Leather Terminology published by <ORG>, describes leather as "the hide and skin of any animal or any portion of such skin, when tanned, tawed or otherwise dressed for use".

11. The above definitions show that hides and skins acquire the name of 'leather', even if the hair or wool has not been removed therefrom, as soon as they receive some treatment which prevents them from putrefaction after treatment with water. Dressing is a stage much later than tanning. Indeed, from the definitions quoted above, it will be seen that it is practically the same as giving finishing touches to the leather and making it suitable for the manufacture of particular types of goods.

13. The same conclusion is further borne out by the literature referred to before us by <NAME>. Volume 7 of <ORG>, under the word "dress", explains that the verb has various applications which can be deduced from its original meaning and that "it is thus used not only of the putting on of the clothing but of the preparing and finishing of leather ". Volume 17, under the head "leather" details the various processes applied in the treatment of hides and skins at all stages, pre-tanning, tanning and post-tanning. Dyeing or colouring is a process which follows tanning but precedes "finishing: (i.e. dressing) in order to make it suitable for the purpose which it is required in commercial usage. Part V of the "Wealth of India", a publication of <ORG> (1966), dealing with leather under "Industrial Products" explains that "hides and skins are liable to putrefaction and loss unless suitably treated and converted into leather". Structurally, hides and skins have a thick middle layer called corium, which is converted to leather by tanning. The operations involved in leather manufacture however fall into three groups. Pre- tanning operations includes soaking, liming, de- liming, bating and pickling, and post-tanning operations are splitting and shaving, neutralising, bleaching, dyeing, fat-liquoring and stuffing, setting out, samming, drying, staking and finishing. These operations bring about Chemical changes in the leather substance and influence the physical characteristics of the leather, and different varieties of commercial leather are obtained by suitably adjusting the manufacturing operations. These processes need not be gone into in detail but the passages relied upon clearly show that hides and skins are termed 'leather' even as soon as the process of tanning is over and the danger of their putrefaction is put an end to. The entry in the CST Act , however, includes within its scope hides and skins until they are 'dressed'. This, as we have seen, represents the stage when they undergo the process of finishing and assume a form in which they can be readily utilised for manufacture of various commercial articles. In this view, it is hardly material that coloured leather may be a form of leather or may even be said to represent a different commercial commodity. The statutory entry is comprehensive enough to include the products emerging from hides and skins until the process of dressing or finishing is done."

Mr. <NAME> submitted that tanned leather would be covered by the definition of the term "Agricultural produce" as defined in Section 2(a) of the Act. He submitted that it was merely a processed form of "hide and skin". He submitted that cases relied upon by the Appellants were of no help as all of them were under taxing statutes and were merely interpreting terms in the context of the definitions given in those statutes. We have considered the arguments of both the parties. In our view it is clear that the interpretation has to be on the basis of the expression 'Agricultural produce' as set out in Section 2(a) of the said Act. In so determining decisions based on different statutes such as Sales Tax Laws can be of no assistance. All the cases relied upon by Mr. <NAME> are cases under the taxing statutes where the interpretation has been given on the basis of the terms as defined in those statutes. A perusal of Section 2(a) of the said Act makes it clear that an agricultural product would be a product which is specified in the Schedule or one which is admixture of two or more items and would also include any such item in a processed form. In our view it makes no difference, for the purposes of the said Act, that the concerned item is a different commodity from the one which is included in the Schedule. It is possible that by virtue of an admixture of two or more items or by virtue of processing a different commodity or item may come into existence. Even though a different commodity may come into existence, it would still be an 'Agricultural produce'. This is best illustrated by <ORG> which is in Schedule A, Item VIII at Serial No. 14. From <ORG>, "rab" and "gur" are manufactured. They are already different commodities or items. Yet they are all included. The specific inclusion of items like "gur, rab, shakkar, khandsari and jaggery" is to make it clear that merely because it becomes a different item or commodity it is not excluded. We see no reason to go into the difference between 'manufacturing' and 'processing'. In the strict sense of the terms there may be a difference. However, we are not required to go into these differences as, in our view, it is very clear, from what has been set out by the Appellants themselves in their affidavit that for hide and skin to be converted into leather or tanned leather all that is required is a process. It is a process of cleaning, curing and adding preservatives. That it is a process has been held by this Court in the case of <CITATION> , etc. (<NAME>). We are also of the view that the finished product i.e. 'tanned leather' even though it may have changed in physical appearance or chemical combination and even though it may commercially be a different item still remains a 'hide' or a 'skin'. For this reason we are of the opinion that there is no illegality or infirmity in the judgment of <ORG>. Even otherwise our above view is supported by the Hindi version of the definition. As has been set out in the case of <ORG> (<NAME>), it is well known in U.P. all legislations are in Hindi. Of course an English version simultaneously published. Undoubtedly if there is conflict between the two than the English version would prevail. However, if there is no conflict then one can always have assistance of the Hindi version in order to find out whether the word used in English includes a particular item or not. In the Hindi version the word used is 'Chamra'. There can be no dispute that the term 'Chamra' would include 'leather' in all its forms. In this view of the matter the Appeal stands dismissed. There will, however, be no order as to costs.


JUDGMENT

1. In this case the Subordinate Judge has refused to execute a decree passed on the original side of this Court, upon the ground that the decree-holder had fraudulently brought a suit on the original side of this Court when this Court had no territorial jurisdiction to pass a decree in the suit. He has purported to act upon the Full Bench decision of this Court in the case of <CITATION> . What has happened is this: the decree-holder, as plaintiff, instituted a. suit on the original side of this Court for recovery of a sum of money from the judgment-debtors on giving up her charge on a certain property under a mortgage bond which the judgment debtors had executed In the plaint that was filed, it was definitely averred that the money had been advanced in Calcutta and that the mortgagors had agreed to repay the loan with interest in Calcutta, as provided in the deed. In the plaint it was definitely stated that the cause of action for the suit had arisen in Calcutta. As the defendants who were then residing outside the local limits of the ordinary original civil jurisdiction of this Court, the plaintiff asked for and obtained leave to institute the suit under Clause (12), Letters Patent. The suit was not contested and an ex parte decree was obtained which formed the subject-matter of the execution and in connexion with which, the order appealed from has been made by the Subordinate Judge. The Subordinate Judge has, upon certain materials to which he has referred in his judgment, come to the conclusion that there was. nothing to show that there was any contract for the repayment of the money in Calcutta as was the plaintiff's case; and; he has held that there is no satisfactory evidence to show that the money was advanced in Calcutta. On these grounds he has come to the conclusion that the suit was fraudulently instituted on the original side of this Court and the said Court had no territorial jurisdiction to pass the decree,

2. We are clearly of opinion that it was; not within the competency of the executing <ORG> to challenge the validity of the decree which this <ORG> on its original side had made, upon the ground on which the order of the Subordinate Judge has been made. It is quite true that an executing <ORG> is competent to refuse to execute a decree if it finds that the decree was made without jurisdiction. But the limits of the powers of an executing <ORG> in this respect have been very definitely prescribed by the <ORG> decision of this <ORG> in the case of <NAME> (supra) on which the Subordinate Judge purports to have proceeded but which, in our opinion, he ha9 entirely misappreciated. What has been laid down in that case is this:

Where a decree presented for execution was made by a <ORG> which apparently had not jurisdiction, whether pecuniary or territorial or in respect of the judgment-debtor's person, to make a decree, the executing <ORG> is entitled to refuse to execute it on the ground that it was made without jurisdiction. Within these narrow limits, the executing <ORG> is authorized to question the validity of a decree.

3. The word "apparently" used in connexion with the proposition laid down by this <ORG>, is a word which must always be very carefully kept in view. What the proposition means is that the executing <ORG> would be competent to refuse to execute the decree only when on the face of the decree it would appear that the <ORG> which passed it had no jurisdiction. When we say 'the decree" we mean the decree and the papers relevant for the purpose of understanding it. The proposition does not mean that, if there is a clear statement upon the plaint which gives the <ORG> jurisdiction to entertain a suit, and if upon the basis of that jurisdiction the decree is passed by the <ORG> without there being a challenge by the defendant as regards the territorial jurisdiction of the <ORG> to pass the decree, it remains open to the defendant to question the jurisdiction of the <ORG> after the decree has been made and in the course of its execution. That was exactly what was intended to he guarded against by the decision which <ORG> passed in the case referred to above.

4. We are of opinion that the learned Judge's order is entirely wrong We accordingly allow the appeal and set aside the order appealed against, and direct that the execution be entertained and dealt with in accordance with law. The appellant is entitled to her costs in this appeal. Hearing fee is assessed at three gold mohurs.

5. The record must be sent down as early as possible.


<NAME>, J.

1. The petitioners have been convicted of an offence punishable under Section 188, Penal Code , for disobeying an order made by the Sub-divisional Magistrate of Barrackpore under Section 144 , Criminal P.C. The facts which give rise to the prosecution are briefly as follows: It is said that communal tension had been aroused in the locality in connexion with a strike. After setting out the matters which gave him jurisdiction, the Sub-divisional Magistrate passed an order under Section 144 . Altogether that order contained three directions and the petitioners are alleged to have dis. obeyed the third which was in these terms:

That no public meeting shall be held in any area in the sub-division so long as this order is in force except on special permission from me which must be applied for at least 24 hours before the. said meetings are held.

2. On 9th December last, the officer-in-charge of the thana at Titagarh was informed that petitioner 1 and others had come to Titagarh and were holding a meeting in front of a certain dispensary. He went to the spot with some police and found petitioner 1 addressing a crowd. He ordered the crowd to disperse as in his opinion they were violating the order made by the Magistrate. The contention of the prosecution is that in taking this action the petitioners were guilty of an offence punishable under Section 188 , Penal Code . They were convicted by the Magistrate of Barrackpore. As their appeal to the Sessions Judge was dismissed they obtained this rule. The rule was pressed on two grounds: (1) The order itself is illegal. (2) That there is no evidence to show that the petitioners had any knowledge of it. The first ground is based upon Clause (3) of Section 144 , Criminal P.C., which is in these terms:

An order under this Section may be directed to a particular individual, or to the public generally when frequenting or visiting a particular place.

3. This particular order was addressed to the public when visiting any part of the Barrackpore sub-division. In support of this ground, Mr. <NAME> contended that the scope of the order was far too wide and drew a distinction between a particular place and an area. In support of his contention, he relied upon the cases in In re D.V. Belvi (1931) 18 A.I.R. Bom. 325 and <CITATION> (1931) 18 A.I.R Bom. 513. On the other hand, the learned Deputy Legal Remembrancer relied upon the case in <NAME> v. Emperor (1934) 21 A.I.R. Bom. 375. In my opinion, it is necessary to distinguish carefully between the jurisdiction of the Magistrate to make an order and a possible practical difficulty in showing that it has been disobeyed. It does not follow that because it is difficult for the <ORG> to secure a conviction that the order itself was made without jurisdiction. If we apply the test laid down by the learned Judges in those two Bombay cases, it would be very difficult to say where a place ends and an area begins. It is obvious that a line would have to be drawn somewhere and for my part I shall find it very difficult to draw such a line. Nor is the matter of much practical importance: for example, if an area may be said to contain 150 places, She Magistrate could pass 150 orders in identical terms and the result would be exactly the same. In our opinion, the order is a definite order and it does not contravene the provisions of Section 144 .

4. On the second point, the learned Deputy Legal Remembrancer conceded that he had no evidence apart from the evidence relating to what took place at the actual meeting. It is said that the petitioners knew of the order because they were told of it by the Sub-Inspector while the meeting was actually going on. The evidence on the point is extremely scanty and is to be found in the deposition of P.W. 1, P.W. 3 and P.W. 4., P.W. 1, the Sub-Inspector, says that he ordered the crowd to disperse as they had assembled in violation of the order. The order was given in an audible voice and part of the crowd actually dispersed. It is, of course, difficult for him to say whether the order was audible to other persons or not. P.W. 3, the Town Inspector, corroborates this account of the action taken by the officer-in-charge of the <ORG> and adds that petitioner 1 and five other persons were addressing the meeting at the time. P.W. 4 merely says that the police arrived and began to move people telling them that there was a Section 144 Order. It appears therefore that his version is not quite the same. From this evidence it is abundantly clear that no personal communication was made to any of the petitioners. There is no distinct evidence as to the relative positions of the petitioners and the <ORG> officer in the crowd. The learned Judge did not consider whether it necessarily follows that petitioner 1 heard what was said by the Sub-Inspector at a time when he himself was actually delivering a speech. The prosecution really did not take sufficient trouble to see that the evidence on this very essential point was sufficient and clear.

5. Then in the second place the order itself is not very happily worded. It does not clearly forbid attendance at a meeting or making speeches at a meeting. The use of the words 'no public meeting shall be held' seems to suggest something in connexion with the organization of a meeting. From the evidence it appears that the petitioner, <NAME> did nothing more than behave like a Hyde Park orator. The actual order is capable of more interpretation than one. Before it can be said that the petitioners had knowledge of the order, it must be shown that its terms were communicated to them. Instead of doing that, the Sub-Inspector merely gave his own interpretation of it, which is quite a different thing. We must accordingly accept the contention raised in the second ground that there is no evidence upon which it can be held that the petitioners had any knowledge of the order. The rule is accordingly made absolute, the convictions and sentences are set aside and the petitioners are discharged from their bail.

<NAME>, <NAME>

6. I agree.


JUDGMENT <NAME>, J.

1. One <NAME> was a Dharmakartha of the Srirangam temple and the right of his family to a place in the <ORG> is still reserved in the scheme framed by <ORG> in <CITATION> (1915) I.L.R. 39 Mad. 700 at 721 : 30 M.L.J. 39. He had also certain <ORG> offices in the temple with emoluments and perquisites attached to them. In 1870 the office of the Dharmakartha and certain <ORG> offices were held by three descendants of the said <NAME>, vis., (1) Sri <NAME> (2) <NAME> and (3) <NAME> who then constituted an undivided Hindu family. Owing to dissensions in the family in 1870 they became divided in status and later effected a partition of their properties including the <ORG> offices in a certain manner. Ex. Ill dated 1st January, 1876, which evidences the division 'provides, so far as the <ORG> is concerned, enjoyment by turns by the three members in rotation each for one year. The actual arrangement in the document was only for three years. But it is in evidence and not disputed that it was acted upon up to the date of the suit by the representatives of the various branches. In 1924 by a document, Ex. V dated 7th February, 1924, and styled deed of partition, four members of the family, representatives of the three branches who were parties to the deed of 1876, purported to effect a complete partition of all that they had kept and enjoyed in common up to that date. They affirmed the arrangement of 1876 and stated that the properties were being enjoyed in accordance therewith up to that date. <NAME> one of the parties to Ex. V died leaving no issue and the first defendant became his heir under the Hindu law in preference to the plaintiffs. It may be mentioned that the plaintiffs 1 and 2 and the first defendant were parties to Ex. V. The plaintiffs have now filed the suit out of which this second appeal arises praying for two reliefs, vis., (1) for "declaring that the plaint schedule offices, rights and perquisites lapse by survivorship to the plaintiffs and the defendants 1 and 2 on the death of the said Vedavyasa <NAME>, on 12th November, 1927, and as a consequential relief (2) for directing (a) the first and second defendants to enjoy the plaint schedule offices, rights and perquisites with the plaintiffs in equal moities by turns or in any other manner the Court may deem fit to order, giving necessary directions therefor to the first, second and third defendants ".

2. Both the Courts have dismissed the suit holding that the arrangement entered into in 1876 and 1924 were binding on the parties in virtue of which the first defendant is entitled to enjoy the share of <ORG> in preference to the plaintiff.

3. Mr. <NAME> on their behalf has raised three contentions: One on a question of fact and two on questions of law namely (1) the office of Dharmakarthaship was in fact kept undivided and plaintiffs have succeeded to the share of <NAME> by right of survivorship along with defendants 1 and 2. (2). <ORG> and the mirasi offices are inalienable and impartible. (3) Whatever may be said of religious offices, the office of dharmakarthaship being in the nature of a bare trusteeship could not be the subject of a partition and every descendant succeeds to the trusteeship in his own right, not as a representative of another and any arrangement come to between the parties at one time could only bind them and not their successors.

4. The question of fact can be easily disposed of. The documents clearly indicate that the members of the family became divided in status and effected a complete division of all the properties including the office. In the document of 1876 no doubt provision was made only for three years in regard to the dharmakarthaship but it was illustrative of the future order in which the property was to be enjoyed by the several branches and for a period of nearly half a century it was so enjoyed. It must therefore be found that the office was divided and enjoyed by turns by the three branches in rotation in accordance with the arrangement of 1876.

5. The office of a trustee of a temple or a religious office therein is prima facie inalienable. It is also indivisible. In one sense it is true that where the office is held by many, it is a collective office. I may state at the outset that it is neither sound nor proper to think of such offices from the point of view of a bare trustee under English law. The conception of the office of a trustee in English law is not the same as the Hindu conception. In <NAME> v. Balusami Ayyar (1921) L.R. 48 I.A. 302 : I.L.R. 44 Mad. 831 at 839, 840 : 41 M.L.J. 346 (P.C.) when speaking of a trustee of a temple, their Lordships of the Privy Council observed;

It has also to be remembered that a trust in the sense in which the expression is used in English law is unknown to the Hindu system pure and simple...in no case is the property conveyed to or vested in him nor is he a trustee in the English sense of the term.

6. The office of a trustee has always been prized as a valuable possession or property much more than tangible property. The succession to a religious office or the office of a trustee of a temple is regulated according to the course prescribed by the founder expressed or implied or according to the usage which is again supposed to be the index of the intention of the founder. Usage has often been resorted to for making the office heritable, <NAME> v. <NAME> (1818) 2 Morley's Digest 146 , to make it also partible under certain conditions, Mitta Kunth v. <NAME> (1874) 14 Bengal L.R. 166, <NAME> v. <NAME> (1882) I.L.R. 6 Bom. 298 or to make it alienable in the line of heirs, <NAME> v. <NAME> (1882) I.L.R. 6 Bom. 298 <NAME> v. <NAME> (1898) I.L.R. 23 Bom. 131 <NAME> <CITATION> (1935) 68 M.L.J. 295. The intention of various pious donors and benefactors in creating such offices and endowing properties to religious or charitable purposes has always been and must be deemed to have been in accordance with the notions and known usages of the community. Even where the office of trusteeship is hereditary - and it may be held by a single family or a number of families. Vide <NAME> v. <NAME> (1876) L.R. 4 I.A. 76 : I.L.R. 1 Mad. 235 (P.C.). As observed by <NAME>, J. in <CITATION> (1917) I.L.R. 40 Mad. 612 at 628 : 32 M.L.J. 597 (F.B.) the institution of hereditary trusteeship is held to rest on the intention of the donor either expressed in the instrument of trust or to be presumed from the usage. In <NAME> v. <NAME> (1876) L.R. 4 I.A. 76 : I.L.R. 1 Mad. 235 (P.C.) their Lordships of the Privy Council observed;

The unknown founder may be supposed to have established this species of corporation with the distinct object of securing the due performance of the worship and the due administration of the property by the instrumentality and at the discretion of four persons capable of deliberating and bound to deliberate together; he may also have considered it essential that those four persons should be the heads of particular families resident in a particular district open to the public opinion of that district, and having that sort of family interest in the maintenance of this religious worship which would insure its due performance.

7. The <ORG> in dealing with these hereditary and charitable offices have always kept two considerations in view : (1) the intention of the founder must be given effect to and should not be frustrated (2) the interests of the trust are paramount and any thing injurious to the interests of the trust cannot be countenanced. So, whether it is a case of a partition or an alienation, the courts have subordinated questions relating thereto to those two considerations. The prohibition against alienation for example was founded on the principle that to make the office the subject of a bargain was to defeat the intention of the founder <CITATION> (1891) I.L.R. 15 Mad. 183 : 2 M.L.J. 19 and it was by the application of this principle that even an alienation for consideration to an heir was forbidden. The question of partibility has again been viewed from the same stand point. <NAME>, J. observed in <NAME> v. <NAME> (1882) I.L.R. 6 Bom. 298.

Hereditary offices, whether religious or secular, are no doubt treated by the'. Hindu text writers as naturally indivisible; but modern custom whether or not it be strictly in accordance with ancient law, has sanctioned such partition as can be had of such property by means of a performance of the duties of the office and the enjoyment of the emoluments by the different co-parceners in rotation.

8. No doubt these observations were made with reference to a religious office but it has also been extended to the case of a bare dharmakarthaship without any emoluments attached thereto. As observed by <NAME>, J. in <CITATION> (1903) I.L.R. 27 Mad. 192 : 13 M.L.J. 341 The juristic basis for the usage and the custom above referred to is not strictly the legal right of partition of ordinary joint family property, but the equitable right to settle a suitable scheme for the efficient and satisfactory management of trusts the duration of the turns of the several members in rotation being however fixed with reference to the law of partition.

9. Their Lordships of the Privy Council in <CITATION> (1906) L.R. 33 I.A. 139 : I.L.R. 29 Mad. 283 : 16 M.L.J. 265 (P.C.) (on appeal from <CITATION> (1903) I.L.R. 27 Mad. 192 : 13 M.L.J 341) observed:

The arrangement seems to have been a perfectly proper arrangement conducing to the due and orderly execution of the office.

In such a case, (where the office vests by descent in a number of persons) in order to avoid confusion or an unseemly scramble, it is not unusual, and it is certainly not improper, for the parties interested to arrange among themselves for the due execution of the functions belonging to the office in turn or in some settled order and sequence. There is no breach of trust in such an arrangement nor any improper delegation of the duties of a trustee.

10. Thus it will be seen that the principle of partition is permitted on the ground that the usage which sanctions it is wholesome for the efficient and smooth discharge of the duties of the office, where the office being hereditary in the family devolves on a number of co-trustees. So far as the trust is concerned, whoever manages the office by turns must be deemed to be managing on behalf of all and management by one of them in rotation is not considered to be adverse or exclusive to other co-trustees.

11. The question now arises, if partition is permitted how it is to be enjoyed by the several members thereafter. <NAME>, J., in the very same case observes:

The usage and custom generally is that along with other properties the office also is divided in the sense that the office is agreed to be held and the duties thereof discharged in rotation by each member or branch of the family the duration of their turns being in proportion to their shares in the family property. Such a scheme of management may proceed either on the footing that the co-trustees are to continue as undivided members quoad the trust property or on the footing of being divided members, as in the case of the rest of the family property. In either case as between themselves their position will be that of co-trustees though on the death of any of them the devolution of his interest in the office will vary according as the scheme of management has been settled on the one footing or the other.

12. This view seems to be borne out both on principle and authority. In the case of religious offices with emoluments attached thereto, usage has always been to permit partition and heritability in the various branches, according to the laws of inheritance applicable to private property; but should such a principle also be extended to the case of a trusteeship where there are no emoluments attached thereto? In <NAME> v. <NAME> (1899) L.R. 27 I.A. 69 : I.L.R. 23 Mad. 271 : 10 M.L.J. 29 (P.C.) <ORG> applied the Hindu law of inheritance to the trusteeship of a temple. Sir <NAME> said:

In their Lordships' opinion the ruling in <CITATION> (1872) L.R.I.A. Supp. Vol. P. 47 is applicable to an hereditary office and endowment as well as to other immoveable property.

13. (treating the office as immoveable property.) It may be noticed Sir <NAME> was a party to the decision in <NAME> v. <NAME> (1874) 14 B.L.R. 166 which recognised partition of an office. Lord <NAME> assumes that the office of a temple descends according to the ordinary law of inheritance applicable. He says in <CITATION> (1906) L.R. 33 I.A. 139 : I.L.R. 29 Mad. 283 : 16 M.L.J. 265 (P.C.):

On <NAME>'s death, the office devolved by inheritance on male descendants of his two wives.

14. Later on he says:

The office may become vested by descent in more than one person.

15. <CITATION> (1920) I.L.R. 44 Mad. 205 : 39 M.L.J. 403 where a widow of a divided member of a family was allowed to succeed to the management of a charity, in thatKattalai in a temple, His Lordship Chief Justice Wallis made the following observation:

It was next argued by Mr. <NAME> that as the plaintiff is now the only male member in the junior branch, he is entitled to the right to the exclusion of the females. He relied upon <CITATION> (1863) 1 M.H.C.R. 415 and on <NAME> v. <NAME> (1877) I.L.R. 1 Mad. 343 for the position that the office of a trustee in a public institution is indivisible and that succession to it must be regulated as in the case of impartible estates. However much one may wish that such a rule of law should obtain in regard to the management of trusts, we are of opinion that the course of decisions in this <ORG>, which has the sanction of <ORG>, is opposed to this principle. <CITATION> (1923) I.L.R. 27 Mad. 192 : 13 M.L.J. 341 Sir <NAME>, J., pointed out that the right of trusteeship in a public institution possessed by the members of a family, when it is hereditary, descends in the same manner as the right to the enjoyment of ordinary family property.

16. <CITATION> (1918) I.L.R. 41 Mad. 886 : 35 M.L.J. 196 (F.B.) it was held that a Hindu female was entitled to succeed to the office of archaka in a temple. Where succession according to the ordinary Hindu law is permitted in the case of a religious office there does not seem to be any objection to permit such a course of a descent in the case of a secular office like a bare trusteeship. In <NAME> v. <NAME> (1927) I.L.R. 52 Mad. 373 : 55 M.L.J. 757 <NAME> J., after referring to <CITATION> (1915) 22 C.L.J. 404 observes:

When the office is held by a number of persons jointly, the right to the office on the death of any of the joint holders passes to his personal heirs, that is, to those who would be his heirs in respect of his separate property.

17. <CITATION> (1917) I.L.R. 40 Mad. 612 : 32 M.L.J. 597 (F.B.), <NAME>, J., in dealing with the doctrine of reverter of an office of a trustee to the natural heirs of a founder observes that where a founder of a charity:

does not appoint another person to manage the properties so given, or settle a scheme for such management, as he is entitled to do at the time of the endowment and as a part of the same transaction, the natural presumption or the legal inference is that he intends to manage the property himself on behalf of the charity or reserves the management to himself. Such management may pass to his heirs by inheritance, just as a legal estate of inheritance may pass in England.

and he points out, citing the <ORG> decision in <CITATION> (1913) L.R. 40 I.A. 97 : I.L.R. 35 All. 283 (P.C.), that:

the vesting of the management in accordance with rules of inheritance applicable to private property must from the very nature of the right, be subject to the condition that the devolution in the ordinary line of descent is not inconsistent with or opposed to the purpose the founder had in view in establishing the worship.

18. Once it is recognised that the office of trustee is property to which the rules of inheritance governing ordinary property are applicable, and it has been applied where the office has vested in a single person, on principle the same rule must govern the devolution of the turn of office which has become vested on division between the various members of the family.

19. Mr. <NAME> relied on a number of decisions in support of his contention that this principle should not apply to the case of a bare trusteeship. The decision which he strongly relied on is that of <ORG> in <CITATION> (1917) L.R. 45 I.A. 1 : I.L.R. 41 Mad. 296 : 34 M.L.J. 130 (P.C.), where their Lordships make the observation that <CITATION> (1903) I.L.R. 27 Mad. 192 : 13 M.L.J. 341 and <CITATION> (1906) L.R. 33 I.A. 139 : I.L.R. 29 Mad. 283 : 16 M.L.J. 265 (P.C.), dealt with a case of private trust. As has been pointed out by Wallis C.J., in <CITATION> (1920) I.L.R. 44 Mad. 205 : 39 M.L.J. 403, the observations of <ORG> in that case which were purely obiter appear to have proceeded on some misconception as to the facts of that case and he pointed out that the decision of <ORG> in <CITATION> (1906) L.R. 33 I.A. 139 : I.L.R. 29 Mad. 283 : 16 M.L.J. 265 (P.C.) , proceeded on the view that the trust they were dealing with was a public trust.

20. No doubt the approval of the decisions in <NAME> v. <NAME> (1864) 2 M.H.C.R. 19 and <NAME> v. <NAME> (1895) I.L.R. 20 Bom. 495, would seem to suggest that their Lordships would favour the rule of impartibility, but as pointed out by <NAME>, the course of decisions has been opposed to this rule. Further their Lordships did not decide the question and the actual decision was rested on the facts peculiar to the foundation in question. Sir <NAME> observed:

It is unnecessary however to decide whether there is a general rule for the devolution of the management of charities of this class, because in their Lordships' view, there is sufficient indication in the documents and surrounding circumstances of this case that a devolution of the management to the heirs of the original donee is inconsistent with the purposes of the founder when he created the endowments.

21. <CITATION> (1894) I.L.R. 19 Mad. 211 , was another case relied on. But that case itself explains the principle upon which a partition will be permissible. The decision while it lays down that a renunciation or a waiver of a trust should not be permitted, enunciates the following principle:

If it was a mere arrangement for the more convenient management of the choultry, reserving to the plaintiff's brothers their right of control, and, if necesssary of resumption of actual management, then it might be said that there would be no interference with the supposed will of the founder and that the arrangement would be lawful. To that extent it seems clear that any co-parcener jointly entitled to management may waive his rights.

22. In every case of partition where several branches enjoy the office by turns there is no surrender or renunciation. It is always subject to the implied condition that the resumption of actual management can be availed of either by consent of parties or through <ORG> and there is no question of divesting themselves of all control over the offices. As has been pointed out by their Lordships of <ORG> in <CITATION> (1906) L.R. 33 I.A. 139 : I.L.R. 29 Mad. 283 at 288 : 16 M.L.J. 265 (P.C.), If he (a member) has any ground for attacking the management of the temple or the administration of the property attached to it, the <ORG>s are open.

23. The case in <CITATION> (1925) I.L.R. 49 Mad. 116 : 49 M.L.J. 568 is distinguishable because it was found therein that impartibility and management by a single individual who was the eldest member of the family had been the rule from the foundation.

24. The decision in <CITATION> (1906) L.R. 33 I.A. 139 : I.L.R. 29 Mad. 283 : 16 M.L.J. 265 (P.C.), is itself an authority for the proposition that a family arrangement or a partition entered into by the several branches of the family must be given effect to so long as the interests of the trust are not imperilled. In this case the members of the family have acted upon the arrangement for nearly half a century and there is no reason why the arrangement should not be held binding on the representatives of the various branches. In a recent case <NAME> and Stodart JJ., in <CITATION> (1935) 70 M.L.J. 262, following <CITATION> (1903) I.L.R. 27 Mad. 192 : 13 M.L.J. 341 and <CITATION> (1906) L.R. 33 I.A. 139 : I.L.R. 29 Mad. 283 : 16 M.L.J. 265 (P.C.), observed that:

the arrangement will be binding upon the parties thereto and their representatives till modified either by common consent or in some manner known to law.

25. In this case the plaintiffs themselves were parties to Ex. V and it was not open to disturb an arrangement which they affirmed and which they acted on.

26. The first defendant is therefore entitled to enjoy the turn of office of <ORG> as also the various religious offices which fell to the share of <ORG> in preference to the Plaintiffs. In the result the second appeal fails and should be dismissed with costs.

27. Leave refused.