ivil appeal No. 2197 From the Judgment and order dated 16.4.70 of Andhra Pradesh High Court in appeal No. 431 of 1965.

Dr. YS Chitale, V. G. Shanker, KL Hathi, Ms. Sadhana, DK Chhaya, MK Arora and Mrs. H. Wahi for the appellant.

352 T. section Krishnamoorthi Iyer, KR.

Choudhry and KS.

Choudhary for the respondents.

The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.

This appeal is by a certificate granted on 18th September, 1970 by the High Court of Andhra Pradesh under Article 133(1) (a) of the Constitution as it stood at the relevant time against the Judgment and decree of the High Court dated 16th April, 1970.

By the said Judgment and decree, the High Court of Andhra Pradesh had reversed the Judgment of the learned Subordinate Judge, Masulipatam dated 19th November, 1964 dismissing the suit of the plaintiffs respondents against the appellant.

Late Shri Raja Vasireddi Chandra Dhara Prashad was the husband of respondent No. 1 and father of the respondents No. 2 to 5 herein.

The respondents filed a suit in the Subordinate Court of Sub Judge being original suit No. 2 of 1964 on 10th January, 1964.

The short facts leading to this case are: One Late Raja Vasireddi Chandra Dhara Prasad (hereinafter referred to as a 'deceased ') died intestate on 12th January, 1961.

He had filled a proposal for insurance for Rs, 50,000 on 27th December, 1960.

There was medical examination by the doctor on the life of the deceased on 27th December, 1960.

The deceased had issued two cheques for Rs. 300 and Rs. 220 respectively in favour of the appellant as first premium.

Cheque for Rs. 300 was encashed by the appellant on 29th December, 1960.

Cheque for Rs. 220 was dishonoured three times and finally encashed on 11th January, 1961.

As mentioned hereinbefore, the deceased died on the day following i.e. on 12th January, 1961.

On 16th January, 1961, the widow of the deceased, respondent No. 1 herein, wrote to the appellant intimating the death of the deceased and demanded payment of Rs. 50,000.

The Divisional Manager, Masulipatam Branch, denied liability on behalf of the appellant Corporation on 28th January, 1961.

Thereafter there was correspondence between the parties between 1st February, 1961 to 23rd December, 1963 wherein the respondents plaintiffs had claimed the payment and the appellant had denied liability for the same.

353 On the 10th January, 1964, the plaintiffs filed the suit in the court of Subordinate Judge, Masulipatam.

It was alleged in the plaint after setting out the facts which have been set out hereinbefore, that the medical examination report was submitted to the appellant corporation by Dr. Sri C. Sambasiva Rao, Approved Medical practitioner of the appellant in regard to the medical examination of the deceased.

A report described as "All the Friend 's report" was duly sent to the appellant with regard to that proposal; and all the preliminaries were completed and it was further alleged that the deceased was assured and told by the local agent and the Field officer of the Corporation that the payment of the first premium would amount to the acceptance of the proposal and advised the deceased to pay the first premium in full.

It was, further, stated that the said two cheques were encashed and the appellant had duly appropriated the amount and credited in the accounts towards the premium payable by the deceased.

Therefore, it was stated that the deceased had fulfilled his part of the insurance contract and the appellant Corporation by its overt acts of encashing the cheques and crediting the amounts in its accounts accepted the proposal of the deceased.

In the premises it was said in the plaint that there was a concluded and valid insurance contract between the deceased and the appellant Corporation and that the insurance contracted commenced on 11th January, 1961 being the date of the receipt of the balance towards premium by the Corporation.

It was further stated in the plaint that the office of the Divisional Manager of Masulipatam was the concerned authority to settle the claim of the plaintiffs respondents and to pay the amount.

The contention of the Corporation that the proposal was not accepted and as such there was no concluded insurance contract between the deceased and the Corporation, was untenable, according to the plaintiffs.

It was alleged that with full knowledge of the completion of all the preliminaries, the Corporation had encashed the cheques issued towards the first premium and therefore it was the case of the plaintiffs respondents that the encashment of the cheques amounted in those circumstances in law to an acceptance of the proposal of the deceased.

It was further alleged that the appropriation of the amounts by the Corporation towards the first premium by the deceased was only consistent with the acceptance of the proposal.

The case of the plaintiffs further was that in this case the first premium was not only received by the Corporation completely on 11th January, 1961 but it was also appropriated by it in its accounts and the said premium amount 354 was received by the Corporation without any demur or qualification and that in any event the Corporation must be deemed to have waived by its conduct the formality, if any, of sending communication of its acceptance of the proposal.

In the premises, the plaintiffs claimed the said amount along with interest at six per cent per annum from the date of refusal of payment till the date of payment of the demand.

Written statement was filed on behalf of the appellant.

In the said written statement, after setting out the facts, it was denied that the payment of the first premium amounted to acceptance of the proposal and the allegation about the assurance given to the deceased as alleged in the plaint was not true nor the alleged assurance if any, valid under law.

It was, further stated that the two cheques were not encashed and credited towards the premium account of the proposal but these were kept only in deposit in suspense account without any liability of the appellant.

It was further stated that the averments in the plaint that the defendant Corporation cashed the above two cheques and appropriated the amounts and credited these in the account towards premium payable for the proposal were false.

It was stated that on the death of the deceased, the amount covering two cheques were lying in the deposit and in the suspense account of the Corporation and was not adjusted towards the premium since the proposal was not considered, the terms of acceptance was not fixed and the premium amount required for the proposal was not calculated.

In these circumstances, the appellant Corporation claimed that there was no liability for the risk and as such the plaintiffs had no right to claim and there was no cause of action.

It was categorically stated that the cheques were not credited and adjusted towards the premium accounts.

During the trial before the learned Subordinate Judge, five different issues were raised.

It is not necessary to set out in detail those issues but the important and main issue was whether there was a concluded valid insurance contract between the deceased and the Life Insurance Corporation of India.

Both documentary and oral evidence were adduced at the Trial.

The respondents plaintiffs examined Shri R.V. Bhupala Prasad, son of the deceased and the Corporation on its behalf examined Shri Jagannadhachari, the Superintendent of the Corpo 355 ration branch at Guntur.

He also produced ex.

B 4, the review slip, prepared by the Branch office, Guntur and sent to the Divisional officer, Masulipatam.

In his deposition, he had stated that the Divisional Manager was the competent authority for accepting the proposal for Rs. 50,000.

Normally it took some time for the Divisional Manager to accept.

There was no communication from the Divisional office to the Branch officer accepting the proposal.

He, further, stated that the amount would be transferred into the first premium register after the proposal was accepted and the risk covered.

He had produced the account books, namely; deposit account book and the first premium account book of the Branch office at Guntur.

Shri Brahmandrao Ramiah Assistant Divisional Manager of the Life Insurance Corporation office at Madras was also examined as the second witness of the defendants.

He had further stated that the proposal form was sent from the office at Guntur to the Divisional office at Masulipatam, and exhibit B 1 to B 4 and B 8 were sent in this connection.

He further stated that according to the financial powers Standing order, it was the Divisional Manager who was competent to accept a proposal for Rs. 50,000 exhibit B 13 is the copy of the Standing order.

The purpose of review slip exhibit B 4 was to enable the Divisional officer to assess the risk and take a decision according to the deponent.

In this connection we may refer exhibit B 14 which is the Life Insurance Corporation of India 's Proposal Review Slip regarding proposal in the case of the deceased.

The endorsement therein of the assistant Divisional Manager read as follows: "NOTES AND DECISION : may be accepted at O.R." WITH E.D.B. Shri Brahmandrao Ramiah had further stated that the papers were scrutinised by him in addition to the scrutiny by the concerned clerks.

He stated that the endorsement marked as exhibit B 14 was initialled by him.

He further stated that the letters 'DM ' were also written by him indicating that the papers should go to the Divisional Manager on exhibit B 4.

He reiterated that the order of acceptance would not be communicated to the party if all the formalities were not complied with; this policy, he stated, was not accepted.

When the acceptance was complete and when there was no requirement necessary and if the full first instalment was 356 in deposit, it would be adjusted towards premium amount, he stated.

In this connection before the learned Trial Judge, reliance was placed on the Life Insurance Corporation of India Standing order, 1960 (Financial Powers).

Chapter III of the Standing order dealt with the powers of the different authorities for, inter alia, 'Underwriting and Revivals of Policy '.

The relevant portion of the said Standing order read as follows: "Nature of Power Authority Extent of Finan cial power (up to and Including) Rs. 1.

Underwriting and Revivals: (a) Standard Section Head 2,000 (Sum Proposed) lives and Supdt or J.O. 5,000 ( do ) revival on A.S.O. 10,000 ( do ) original A.D.M. 25,000 ( do ) terms D.M. 1,00,000 ( do ) Note: Proposals on standard lives for more than Rs. 1,00,000 should be referred to the Central Underwriting Section." Learned Subordinate Judge by his judgment dated 19th November, 1964 held that there was no concluded contract.

He held that as per the prospectus of Life Insurance Corporation of India the risk under the Corporation policy commenced on the date of receipt of the first premium in full or the date of acceptance whichever was later and the second instalment of the premium falls due on a date calculated from such date of commencement of risk.

Learned Trial Judge was of the opinion that the documents in this case coupled with evidence on behalf of the Appellant Corporation established that the proposal sent by the deceased was for some reason 357 or other not accepted by the Divisional office by the time the deceased had died.

The Trial Court therefore held that there was no concluded valid insurance contract between the deceased and the Corporation.

The Trial Court further noted that it was significant that the case set out in the plaint and the basis of the claim made in the notices sent to the Corporation was not that the proposal was as a matter of fact accepted by the Divisional Manager, on the other hand, claim was that it should be deemed to have been accepted.

Considering the evidence and the averments, the Learned Subordinate Judge came to the conclusion that the accounts do not show the position alleged by the plaintiffs respondents that the amounts paid were appropriated towards the premium and the Trial Court was of the opinion that encashing of the cheques and the want of any further action to be done by the deceased did not themselves create a contract of insurance between the deceased and the Corporation.

The Trial Court was of the opinion that the proposal must be accepted by the Divisional Manager and that alone could give rise to a valid contract of insurance which never happened in this case.

The Trial Court further expressed the view that the other averments in the claim that the deceased was assured and told by the local agent and the field officer of the Corporation that the payment of the first premium would amount to the acceptance of the proposal were not established and even if such a representation was made, that did not alter the position as under the rules the payment of the premium could never amount to the acceptance of the proposal if the proposal was not otherwise accepted.

In the result, the suit filed by the respondents plaintiffs was dismissed with costs.

Being aggrieved by the said decision, the plaintiffs respondents field appeal in the High Court.

The appellants before the High Court also filed civil miscellaneous petition praying that in the circumstances stated in the affidavit filed therewith the High Court might be pleased to direct the Life Insurance Corporation to produce certain documents viz., proposals, review slips and proposal dockets and the connected papers of the present case and statements furnished by the Divisional office to the Zonal office showing the new business in the year 1960 and proposal register work of Divisional office for the year 1960.

The High Court directed the Life Insurance Corporation to produce the documents referred to above.

The High Court by its judgment dated 14th April, 1970 held after considering the standing order exhibit B 13 and the various documents produced for the first time on record that there was acceptance of proposal and like 358 other contracts, the contract of insurance was complete by offer and acceptance.

In coming to this conclusion the High Court relied on the alleged adjustment and the endorsement of the review slip recommending that the proposal "may be accepted" made on the relevant file by the Assistant Divisional Manager.

Relying on certain other documents which were called for, for the first time by the High Court relating to certain other cases where only the Assistant Divisional Manager made similar endorsement, the High Court came to the conclusion that there was a valid contract.

The High Court was of the view that the plea that Divisional Manager was the only authority to accept had not been categorically taken in the written statement filed on behalf of the Corporation.

On the other hand, there was a general statement that there was no concussed contract.

The High Court was of the view that having regard to the conduct of the parties, there was a concluded contract.

The High Court took the view that exhibit B 13 dealing with Chapter III of the Financial Powers did not categorically deal with the acceptance of proposals.

The High Court was of the view that the Corporation had not filed any evidence of any order prohibiting other officers one step below in rank, in this case the Assistant Divisional Manager, to exercise the power of Divisional Manager.

In our opinion, the High Court was in error in appreciating the facts and the evidence in this case.

We cannot accept the High Court 's criticism with the averment in the written statement that there was not sufficient pleading that there was no concluded contract and non acceptance of the proposal was not sufficient averment that the Divisional Manager was the only competent authority to accept the proposal.

The High Court, in our opinions was also wrong in its view about the powers of the different authorities under Chapter III of the Standing order, 1960 dealing with the financial powers.

Indeed there was no evidence that the Assistant Divisional Manager had accepted the proposal on the contrary he his deposition as we have indicated before had stated otherwise.

He had stated that the purpose of review slip was to enable the Divisional Manager to asses the risk and take a decision.

He had never stated that he had taken a decision to accept the proposal.

The allegation that there was assurance on behalf of the field officer and local agent to the deceased that the payment of first premium would amount to the acceptance of the proposal cannot also be accepted firstly because factually it was not proved and secondly because 359 there was no evidence that such could have been the deposition in law.

When an insurance policy becomes effective is well settled by the authorities but before we note the said authorities, it may be stated that it is clear that the expression "underwrite" signifies accept liability under '.

The dictionary meaning also indicates that.

(See in this connection The Concise oxford Dictionary Sixth Edition p. 1267.) It is true that normally the expression "underwrite" is used in Marine insurance but the expression used in Chapter III of the Financial powers of the Standing order in this case specifically used the expression "underwriting and revivals" of policies in case of Life Insurance Corporation and stated that it was the Divisional Manager who was competent to underwrite policy for Rs 50,000 and above.

The mere receipt and retention of premium until after the death of the applicant or the mere preparation of the policy document is not acceptance.

Acceptance must be signified by some act or acts agreed on by the parties or from which the law raises a presumption of acceptance.

See in this connection the statement of law in Corpus Juris Secundum, Vol.

XLV page 986 wherein it has been stated as: "The mere receipt and retention of premiums until after the death of applicant does not give rise to a contract, although the circumstances may be such that approval could be inferred from retention of the premium.

The mere execution of the policy is not an acceptance; an acceptance, to be complete, must be communicated to the offeror, either directly, or by some definite act, such as placing the contract in the mail.

The test is not intention alone.

When the application so requires, the acceptance must be evidenced by the signature of one of the company 's executive officers.

" Though in certain human relationships silence to a proposal might convey acceptance but in the case of insurance proposal silence does not denote consent and no binding contract arises until 360 the person to whom an offer is made says or does something to signify his acceptance.

Mere delay in giving an answer cannot be construed as an acceptance, as, prima facie, acceptance must be communicated to the offeror.

Whether the final acceptance is that of the assured or insurers, however, depends simply on the way in which negotiations for an insurance have progressed.

See in this connection statement of law in MacGillivray & Parkington on Insurance Law, Seventh Edition page 94 paragraph 215.

Reference in this connection may be made to the Statement of law in Halsbury 's Laws of England 4th Edition in paragraph 399 at page 222.

Having regard to the clear position in law about acceptance of insurance proposal and the evidence on record in this case, we are, therefore, of the opinion that the High Court was in error in coming to the conclusion that there was a concluded contract of insurance between the deceased and the Life Insurance Corporation and on that basis reversing the judgment and the decision of the learned Subordinate Judge.

The appeal must, therefore, be allowed.

We however record that in view of the fact that such a long time has elapsed and further in view of the fact that principal amount together with interest amounting to about Rs. 85,000/ have already been paid to the wife of the deceased and his children, the Life insurance Corporation in this case does not insist on the full repayment of the sum paid and counsel on behalf of the Life Insurance Corporation has stated that they would accept if half of what has been received by the respondents, namely principal together with interest is paid back to the Corporation.

We order accordingly that the respondents will therefore pay back half of the actual amount received both of the principal together with interest within three months from this date.

In the facts and circumstances of the case there will be no order as to costs in this Court.

With the above observations, the appeal is allowed.

S.R. Appeal allowed.

Summary: One Late Raja Vasireddi Chandra Dhara Prasad died intestate on 12th January, 1961.

Summary: He had filled a proposal for insurance for Rs. 50,000 on 27th December 1960.

Summary: There was medical examination by the doctor on the life of the deceased on 27th, December, 1960.

Summary: The deceased issued two cheques being the consideration towards the first premium for Rs 300 and Rs. 220 respectively which were encashed by the appellant on 29th December 1960 and 11th January 1961.

Summary: On 16th January 1961, the widow of the deceased wrote to the appellant intimating the death of the deceased and demanded payment of Rs. 50,000 The Divisional Manager, Masulipatam Branch denied liability on behalf of the appellant on 28th January, 1961.

Summary: Thereafter there was correspondence between the parties between Ist February 1961 and 23rd December 1963.

Summary: On 10th January 1964, the respondents filed a suit in the Court of Subordinate Judge, Masulipatam.

Summary: The trial court dismissed the suit holding, inter alia, that there was no concluded contract, that the proposal was not accepted by the Divisional Manager for some reason or the other by the time the deceased had died, that neither the encashment of the two cheques created a contract of insurance.

Summary: In appeal, the High Court after ordering certain other additional documents set aside the Trial Court Judgment.

Summary: Hence the appeal by the Corporation after obtaining the special leave.

Summary: Allowing the appeal, the Court ^ HELD; 1.

Summary: Having regard to the clear position in law about acceptance of insurance proposal and the evidence of record in this case, it is clear that the, High Court was in error.

Summary: in coming to the conclusion that there was a concluded contract of insurance between the deceased and the Life Insurance Corporation.

Summary: [360D E] 2.

Summary: Though in certain human relationship silence to a proposal might 351 convey acceptance but in the case of insurance proposal, silence does not denote consent and no binding contract arises until the person to whom an offer is made says or does something to signify his acceptance.

Summary: Mere delay in giving an answer cannot be construed as an acceptance, as, prima facie, acceptance must be communicated to the offer or The general rule is that the contract of insurance will be concluded only when the party to whom an offer has been made accepts it unconditionally and communicates his acceptance to the person making the offer.

Summary: Whether the final acceptance is that of the assured or insurers, however, depend simply on the way in which negotiations for an insurance have progressed.

Summary: [359H, 360A B] 3: 1.

Summary: When an insurance policy becomes effective is well settled by the authorities but it is clear that the expression "underwrite" signifies accept liability under that.

Summary: The dictionary meaning also indicates that.

Summary: It is true that normally the expression "underwrite" is used in Marine insurance but the expression used in Chapter III of the Financial Powers of the Standing order in this case specifically used the expression 'funderwriting and revivals" of policies in case of Life Insurance Corporation and stated that it was the Divisional Manager who was competent to underwrite policy for Rs, 50,000 and above.

Summary: [359 B D] 3: 2.

Summary: The mere receipt and retention of premium until after the death of the applicant or the mere preparation of the policy document is not acceptance.

Summary: Acceptance must be signified by some acts or acts agreed on by the parties or from which the law raised a presumption of acceptance.

Summary: [359D E] 3: 3 In the instant case, the High Court was in error in coming to the following conclusions; (i) that there was not sufficient pleading that there was no concluded contract, and non acceptance of the proposal was not sufficient averment that the Divisional Manager was the only competent authority to accept the proposal; (ii) in its view about the powers of the different authorities under Chapter III of the Standing order 1960, dealing with the financial powers; (iii) about the view that the Assistant Divisional Manager having accepted the proposal and (iv) about the assurance given by the Field officers that the acceptance of the first premium would automatically create a concluded contract of insurance ' [358E H] The Court however directed half the amount of the insurance amount of Rs. 85,000 paid to the Respondents to be refunded to the Corporation.

Summary: [360F G]


l Misc.

Petitions Nos.

401/and 4012 of 1968.

Applications by respondent No. 1 for revocation of the certificate granted by the Madras High Court on 15th October, 1968 under article 133(1)(a) & (b) of the Constitution of India.

AND Civil Appeals Nos. 2183 and 2184 of 1968.

Appeals from the judgment and order elated October 9, 1968 of the Madras High Court in O.S.A. No. 25 and 27 of 1968.

M.C. Setalvad.

V.P. Raman, D.N. Mishra, and J.B. Dadachanji, for the appellant.

section Mohan Kumaramangalam.

M.K. Ramamurthi, Shyamala Pappu and Vineet Kumar, for respondent No. 1.

Rameshwar Nath and Mahinder Narain, for respondent No. 2.

The Judgment of the Court was delivered by Shah, J.

M/s. Tarapore & Company hereinafter called the plaintiffs applied in Suit No. 118 of 1967 for an interim injunction restraining the Bank of India Ltd. the first defendant in the suit from taking any steps in pursuance of a letter of credit opened in favour of M/s. V/O Tractors Export, Moscow, the second defendant.

Ramamurthi, J., by order dated April 12, 1968, granted an interim injunction restraining encashment of the letters of credit pending disposal of the suit.

In appeals under the Letters Patent preferred by the second defendant,.

the High Court of Madras set aside that order.

Against the orders passed in the two appeals, the plaintiffs applied for certificate under Arts.133(1)(a) and 133(1)(b) of the Constitution.

The High Court observed that an order granting interim injunction "is a final order, as far as this Court is concerned, determining the rights of parties within this lit or proceeding, which is independent though ancillary to the suit", and they were competent to grant the certificate.

By our order dated October 28, 1968, we ordered that the certificate granted by the High Court do stand revoked.

We set out the reasons in support of that order.

Article 133 (1) provides, insofar as it is material: "(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies (a) that the amount or value of the subject matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than twenty thou sand rupees or such other sum as may be specified in that behalf by Parliament by law; or 701 (b) that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value; or "(c) . . where the. judgment, decree or final order appealed from affirms the decision of the Court immediately below in any case other than a case referred to in sub clause (c), if the High Court further certifies that the appeal involves some substantial question of law.

" The suit filed by the plaintiffs is a civil proceeding, and the suit involves some claim or question respecting property of not less than twenty thousand rupees.

That is a matter not in dispute.

The expression "judgment" in article 133 ( 1 ) in the context in which it occurs means a final adjudication by the Court of the rights of the parties, 'and that an interlocutory judgment even if it decides an issue or issues without finally determining the rights and liabilities of the parties is not a judgment, however cardinal the issue may be.

In the present case not even an issue has been decided, and it is not contended that the order of the High Court amounts to a judgment or 'a decree.

The expression "final order" it has been held by a long course of authorities, occurring in section 205 of the Government of India Act, 1935, section 109 of the Code of Civil Procedure and article 133(1) of the Constitution means a final decision on the rights of the parties in dispute in a suit or proceeding; if the rights of the parties in dispute in the suit or proceeding remain to be tried, after the order, the order is not final.

In Ramchand Manjimal vs Goverdhandas Vishindas RatanChand(1), it was held by the Judicial Committee that an order of the Judicial Commissioner of Sind vacating an order of stay granted under section 19 o,f the Indian Arbitration Act, 1899, and refusing to stay a proceeding was not a final order within the meaning of section 109(a) of the Code of Civil Procedure.

Viscount Cave referred to Salaman vs Warner(2); Bozson Altrincham Urban District Council(a) and Issacs vs Salbstein(4) and observed: "The effect of those and other judgments is that an order is final if it finally disposes of the rights of the parties.

The orders now under appeal do not finally dispose of those rights, but leave them to be determined by the Courts in the ordinary way.

" In Abdul Rahman vs

D.K. Cassim & Sons(5) the Judicial Committee observed that the expression "final order" within the meaning of section 109(a) of the Code of Civil Procedure, 1908, is an (1) L.R. 47 I.A. 124.

(2) (3) (4) (5) L.R. 60 I.A. 76.

C.I./69 12 702 order which finally disposes of the rights of the parties in relation to the whole suit.

In Abdul Rahman 's case(1) a suit was instituted by D.K. Cassim and Sons claiming damages against the appellant Abdul Rahman.

Soon after the suit was instituted the plaintiff firm was adjudicated insolvent and the official assignee was impleaded as an additional plaintiff.

The official assignee declined to proceed with the suit, and the suit was dismissed by the trial court.

In appeal it was held by the High Court of Calcutta that the cause of action was personal to the insolvents and did not vest in the assignee, and accordingly they set aside the decree and remanded the suit for trial.

Against that order an appeal was preferred to the Judicial Committee which was held not maintainable.

Kuppusami Rao vs The King(2) The Federal Court held that the expression "final order" in section 205 (1 ) of the Government of India Act, 1935, means an order which finally determines the points in dispute and brings the case to an end.

The test of finality, according to the court, is whether the order finally disposes of the rights of the parties, and not whether the order decides an important point or even a vital issue in the case.

Mukherjea, J., in interpreting the expression "judgment, decree or final order" in section 205 of the Government of India Act, 1935, in Mohammad Amin Brothers Ltd. and others vs Dominion India and others ( 3 ) observed: "The expression "final order" has been used in contradistinction to what is known as "interlocutory order" . .

If the decision on an issue puts an end to the suit, the order will undoubtedly be a final one, but if the suit is still left alive and has got to be tried in the ordinary way, no finality could attach to the order." In Mohammad Amin Brothers ' case(3) an issue was decided by the trial court in a petition for winding up of a Company as to the maintainability of a claim for recovery of income tax dues.

In appeal the High Court overruled the objection raised by the Company about the maintainability of the claim, and finding that a bona fide dispute was pending before the Income tax authorities relating to a substantial part of the debt on which the application for winding up was made and that the solvency of the Company could not be determined before that dispute was decided, set aside the order of the Trial Judge and remanded the case to him.

The Federal Court held that the order appealed against was not a "final order".

In Sardar Syedna Taher Saifuddin Saheb vs The State of Bombay(4) a suit was filed for a declaration that the order of ex (1) L.R. 60LA.

76 (2) (3) (4) 703 communication passed by the appellant religious head of a community was invalid.

During the pendency of the suit them Bombay Prevention of Ex communication Act 42 of 1949 was enacted and one of the issues raised in the suit was whether the order of ex communication was invalid.

This issue was tried as a preliminary issue and as it raised the question of the vires of the Bombay prevention 'of Ex communication Act, 1949, the State of Bombay was impleaded as a party defendant in the suit.

The trial court decided the issue against the appellant and the order was confirmed in appeal by the High Court of Bombay.

Against the order deciding the issue, an appeal was preferred to this Court with certificate granted by the High Court under article 132 and article 133 of the Constitution, and it was held that the appeal was not maintainable since the decision on the issue did not finally dispose of the dispute between the parties.

In Srinivasa Prasad Singh vs Kesho Prasad Singh(1) an order deciding that circumstances had not been established such as would justify an order for stay of execution of a decree under appeal was not a 'final order" and was on that account not appealable to the judicial Committee.

Similarly in Druva Coal Company vs Benaras Bank(2) it was held that an order by the High Court reversing the order of the Court of First Instance granting a temporary injunction was not a final order within the meaning of section 109 of the Code of Civil Procedure.

There is, therefore, 'abundant authority in support of the view that an order is final within the meaning of article 133 of the Constitution, under section 109 Code of Civil Procedure or section 205 of the Government of India Act, 1935, if it amounts to final decision on the rights of the parties in dispute in the suit or proceeding; if after the order is made, the suit or proceeding still remains to be tried, and the rights in disputes have to be determined, the order is interlocutory.

Counsel for the appellant strongly relied upon a recent judgment of this Court in Mohanlal Maganlal Thakkar vs State of Gujarat(3) and contended that the view expressed in the earlier cases is superseded.

In Mohanlal Thakkar 's case(a) after an enquiry under section 476 Code of Criminal Procedure, 1898, a Magistrate ordered that a complaint be filed against a person in respect of offences under sections 205, 467 and 468 read with section 114 I.P. Code.

In appeal the Additional Sessions Judge held that the complaint was competent only in respect of the offence under section 205 read with section 114.

The High Court dismissed a revision application against the order of the Court of Session.

Certificate was there (1) 13 C.L.J. 681.

(2) (3) ; 704 after issued by the High Court under article 134(1)(c) of the Con stitution for leave to appeal against the order.

The competence of the High Court to grant the certificate was challenged at the hearing of the appeal.

This Court held (Bachawat & Mitter JJ., dissenting) that the order passed was a final order within the meaning of article 134(1) (c) since the controversy between the parties when the the complaint in respect of offences under sections 467 and 468 read with section 114 I.P. Code was disposed of by the order of dismissal and the proceeding regarding that question was finally decided It was observed that the finality of that order was not to be judged by co relating it with the controversy in the complaint, viz., when then the appellant had committed the offence charged ,against him therein.

There is nothing in that judgment which supports the contention that this Court has departed from the principle of the earlier decisions or has suggested a different test for determining the finality of orders.

The Court in that case was concerned merely with an order passed by the High Court which maintained the order of the Additional Sessions Judge that a complaint under section 205 read with section 114 I.P. Code could be filed against the appellant.

The order of the High Court finally disposed of the proceeding in the Magistrate 's court relating to the expediency of instituting criminal proceedings against the appellant.

It was thereafter for the court trying the complaint to decide whether the offence complained of was committed by the appellant.

The proceeding for filing a complaint under section 476 of the Code of Criminal Procedure was a self contained proceeding and was finally disposed of by the order directing the filing of a complain under section 205 read with section 114 I.P. Code.

The proceeding instituted on the complaint was not part of or incidental to the proceeding for an enquiry whether a complaint should be filed.

The Court in that case expressly approved of the earlier view at p. 736 where after referring to Kuppusami Rao 's case(1) observed: Syedna Taher Saifuddin Saheb 's case(") observed: " . these were cases where the impugned orders were passed in appeals or revisions and since an appeal or a revision in continuation of the original suit or proceeding the test applied was whether the order disposed of the original suit or proceeding.

If it did not, and the suit or proceeding was a live one, yet to be tried, the order was held not to be final.

Different tests have been applied, however, to orders made in proceeding independent of the original or the main proceeding.

" In our judgment an order passed by the High Court in appeal which does not finally dispose of a suit or proceeding and leave the rights and obligations of the parties for determination in the suit or proceeding from which appeal has arisen, is not final within (1) (2) E[1958] S.C.R. 1007.

705 he meaning of article 133(1)(a) and (b).

The order refusing to grant an interim injunction did not determine the rights and obligations of the parties in relation to the matter in dispute in the suit.

We are unable to hold that, because the plaintiff 's suit as a result of the order of the High Court may become infructuous as framed and the plaintiffs may have to seek amendment of the plaint to get effective relief, an order which is essentially an interlocutory order may be deemed final for the purposes of article 133 (1) of the Constitution.

In our judgment, Mohanlal Maganlal ThakKar 's case(1) makes no departure from the earlier judgments of the Judicial Committee, the Federal Court and this Court.

The plaintiffs will pay the costs of the petitioners of the application for revocation of the certificate.

G.C. Certificate revoked.

Summary: M/s Tarapore & Co. who were plaintiffs in a suit applied for an interim injunction restraining the first defendant in the suit from taking any steps in pursuance of a letter of credit opened in favour of the second defendant.

Summary: A single judge of the High Court granted an interim injunction restraining encashment of the letters of credit pending disposal of the suit.

Summary: In appeals under the Letters Patent preferred by the second dependent, the High Court of Madras set aside that order.

Summary: Against the orders passed in the two appeals, the plaintiffs applied for certificate under articles 133(1) (a) and 133(1)(b) of the Constitution.

Summary: The High Court observed that an order granting interim injunction "is a final order, as far as this Court is concerned, determining the rights of parties within this his or proceeding, which is independent though ancillary to the suit", and they were competent to grant certificate.

Summary: In this Court the defendants applied for revocation of the certificate.

Summary: HELD: The certificate must be revoked.

Summary: An order passed by the, High Court in appeal which does not finally dispose of a suit or proceeding and leaves the rights and obligations of the parties for determination in the suit or proceeding from which the appeal has arisen, is not final within the meaning of article 133(1)(a) and (h).

Summary: It could not be held that because the plaintiffs suit as a result of the order of the High Court may become infructuous as framed and the plaintiff may have to amend his plaint to obtain effective relief an order which is essentially an interlocutory order may be deemed final for the purpose of article 133(1) of the Constitution.

Summary: [704 H] Mohanlal Maganlal Thakkar 's case makes no departure from the earlier judgments of the judicial Committee, the Federal Court and this Court.

Summary: Ramchand Manjimal vs Goverdhandas Vishindas Ratanchand, L.R. 47 I.A. 124; Salaman vs Warner, ; Bazson vs Altrincham Urban District Council, [1903] 1 K.B. 547; Isaacs vs Selbstein, , Abdul Rahrnan vs

Summary: D.K. Cassim & Sons, L.R. 60 I.A. 76; section Kuppusami Rao vs The King, ; Mohammad Amin Brothers Ltd, and Others vs Dominion of India and Others, ; Sardar Syedna Taher Saifuddin Saheb vs The State of Bombay, ; Srinivasa Prasad Singh vs Kesho Prasad Singh 13 C.L.J. 681 and Druva Coal Company vs Benaras Bank, , referred to.

Summary: Mohanlal Maganlal Thakkar vs State of Gujarat.

Summary: A.I.R. , explained.


cellaneous Petition No. 32937 of 1988.

345 IN Writ Petition No. 12 183 of 1985.

(Under Article 32 of the Constitution of India).

K.K. Venugopal, Mrs. Jayashree Wad and Mrs. Aruna Mathur for the Petitioners.

K. Parasaran, Attorney General, A.K. Ganguli, P. Parmes waran and K. Swamy for the Respondents.

The following Order of the Court was delivered: ORDER In respect of the civil miscellaneous petition for clarification of this Court 's judgment dated 4th November, 1988, it is made clear that the assessable value of the processed fabric would be the value of the grey cloth in the hands of the processor plus the value of the job work done plus manufacturing profit and manufacturing expenses whatev er these may be, which will either be included in the price at the factory gate or deemed to be the price at the factory gate for the processed fabric.

The factory gate here means the "deemed" factory gate as if the processed fabric was sold by the processor.

In order to explain the position it is made clear by the following illustration: if the value of the grey cloth in the hands of the processor is Rs.20 and the value of the job work done is Rs.5 and the manufacturing profit and expenses for the processing be Rs.5, then in such a case the value would be Rs.30, being the value of the grey cloth plus the value of the job work done plus manufac turing profit and expenses.

That would be the correct as sessable value.

If the trader, who entrusts cotton or man made fabric to the processor for processing on job work basis, would give a declaration to the processor as to what would be the price at which he would be selling the processed goods in the market, that would be taken by the Excise authorities as the assessable value of the processed fabric and excise duty would be charged to the processor on that basis provided that the declaration as to the price at which he would be selling the processed goods in the market, would include only the price or deemed price at which the processed fabric would leave the processor 's factory plus his profit.

Rule 174 of the Central Excise Rules, 1944 346 enjoins that when goods owned by one person are manufactured by another the information is required relating to the price at which the said manufacturer is selling the said goods and the person so authorised agrees to discharge all the liabil ities under the said Act and the rules made thereunder.

The price at which he is selling the goods must be the value of the grey cloth or fabric plus the value of the job work done plus the manufacturing profit and the manufacturing expenses but not any other subsequent profit or expenses.

It is necessary to include the processor 's expenses, costs and charges plus profit, but it is not necessary to include the trader 's profits who gets the fabrics processed, because those would be post manufacturing profits.

Summary: On a civil miscellaneous petition for clarification of this Court 's judgment dated 4th November, 1988, the Court.

Summary: HELD: The assessable value of the processed fabric would be the value of the grey cloth in the hands of the processor plus the value of the job work done plus manufacturing profit and manufacturing expenses whatever these may be, which will either be included in the price at the factory gate or deemed to be the price at the factory gate for the processed fabric.

Summary: [345D E] The factory gate means the "deemed" factory gate as if the processed fabric was sold by the processor.

Summary: [345E] If the trader.

Summary: who entrusts cotton or man made fabric to the processor for processing on job work basis, would give a declaration to the processor as to what would be the price at which he would be selling the processed goods in the market, that would be taken by the Excise authorities as the assessable value of the processed fabric and excise duty would be charged to the processor on that basis.

Summary: Such a declaration would include only the price or deemed price at which the processed fabric would leave the processor 's factory plus his profit.

Summary: It is necessary to include the processor 's expenses, costs and charges plus profit, but not the trader 's profits who gets the fabrics processed, because those would be post manufacturing profits.

Summary: [345G H; 346B C]


Civil Appeal No. 1433 of 1977 Appeal by Special leave from the Judgment and Order dated the 16th February, 1.977 of the Punjab and Haryana High Court in Civil Writ Petition No. 752 of 1977.

J.D. Jain & Mrs. Kawaljit Kocher for the Appellant.

Harbans Lal, I.S. Goel & R.N. Poddar for the Respondent.

The Judgment of the Court was delivered by CHANDRACHUD, CJ.

Section 33 of the Punjab Panchayat Samitis and Zilla Parishads Act; 1961 ("The Act") provided in so far as relevant, that subject to rules made by the Government, a Panchayat Samiti may employ such servants as it may consider necessary for the efficient performance of the duties imposed upon it by the Act, rules or bye laws made thereunder or by.

In pursuance of this power, the appellant was appointed as a clerk on June 1, 1963 by the Panchayat Samiti, Loharu, which is respondent 3 in this appeal.

He was confirmed in that post in course of time.

On January 21, 1974 he was promoted as a Head Clerk on an ad hoc basis.

On March 14, 1975 a resolution was passed by respondent 3 regularising the post of Head Clerk.

On April 1, 1975, the appellant was appointed as a Head Clerk.

The Punjab Panchayat Samitis, Zilla Parishads (Haryana Amendment) Act, 1973 introduced extensive amendments in the Act of 1961.

Section 13 of the Amending Act deleted section 33 of the Act.

A plain consequence of this deletion was that the Panchayat Samitis were divested of their power to make appointments to the Panchayats.

The Amending Act received the assent of the Governor 736 on April 25, 1973 and was published in the Haryana Gazette on June 13, 1973.

Sections 35(1) of the Act empowers the State Government to place at the disposal of a Panchayat Samiti such of its servants as are required for the implementation of the schemes connected therewith and for such other duties and functions as may be assigned to them by the Panchayat Samiti from time to time.

Section 35(3) which dealt with the conditions of service of the Government servants allotted to the Panchayat Samitis, was amended by section 14 of the Amending Act of 1973.

Sub section (4) of section 14 of the Amending Act provides that persons employed by a Panchayat Samiti before April 1, 1973 and who were in service at the commencement of the Amending Act shall continue to service on the same terms and conditions on which they were employed by the Panchayat Samiti", until they are absorbed in the Government service or retire in such manner as may be prescribed.

Acting in pursuance of the provision of section 14(4) of the Amending Act, the Government of Haryana notified the absorption of the appellant as a clerk though, as stated earlier he was working as a head Clerk in the Loharu Panchayat Samiti.

Being aggrieved by his absorption on a lower post, he filed a writ petition in the High Court of Punjab and Haryana, asking that he should be absorbed as a Head Clerk.

The writ petition having been dismissed by the High Court, the appellant has filed this appeal by special leave.

The appellant was appointed as a clerk by the Loharu Panchayat Samiti in 1963, long before the Amending Act came into force on June 13, 1973.

He was, therefore, entitled to be absorbed in Government service as a clerk in any event.

But, as a result of the deletion of section 33 of the Act by the Amending Act of 1973, the Panchayat Samiti lost its power to make appointments to the Panchayat.

The fact that the appellant was promoted as a Head Clerk on an ad hoc basis in January 1974, or the further fact that he was appointed as a Head Clerk on April 1, 1975, cannot improve his position for the simple reason that these appointments were made after June 13, 1973, being the date on which the Panchayat Samiti lost its power to make appointments to.

the Panchayat.

737 It is urged by Shri Jain who appears on behalf of the appellant that by reason of section 14(4) of the Amending Act, the appellant was entitled to continue in the service of the Panchayat on the same terms and conditions on which he was employed by the Panchayat Samiti until he was absorbed in Government service.

Since the appellant, according to the terms and conditions of his service with the Panchayat, was entitled to be considered for promotion to the post of a Head Clerk, his appointment as a Head Clerk prior to his absorption in Government service had to be recognised and protected, despite the fact that such appointment was made after June 13, 1973 when the Amending Act came into force.

There is no substance in this contention.

Even assuming for the purposes of argument that the right to be considered for promotion is a term and condition of service, what is relevant for our purpose is not whether the appellant was entitled to be considered for promotion but, whether the Panchayat Samiti had the right to appoint him to the post of Head Clerk on the date on which it purported to do so.

Clearly, it had fortified that right on June 13, 1973.

It could not, therefore, have appointed the appellant as a Head Clerk, as it purported to do, in January 1974 on an ad hoc basis or in April 1975 on a regular basis.

The appointment of the appellant to the post of a Head Clerk being without the authority of law, the Government was not bound to absorb him in the post of a Head Clerk.

He was appointed lawfully to the post of a Clerk and that is the post in which the Government has absorbed him.

For these reasons, the appeal fails and is dismissed.

There will be no order as to costs.

S.R. Appeal dismissed.

Summary: Section 33 of the Punjab Panchayat Samitis and Zilla Parishads Act, 1961 provided that subject to rules made by the Government, a Panchayat Samiti may employ such servants as it may consider necessary for the efficient performance of the duties imposed upon it by the Act, rules or bye laws made thereunder or by any other law for the time being in force.

Summary: The Punjab Panchayat Samitis and Zilla Parishads (Haryana Amendment Act, 1973 which came into force from June, 13, 1973, introduced extensive amendments.

Summary: Section 33 of the Act was deleted by Section 13 of the Amending Act, Sub section (4) of Section 14 the Amending Act, provided that persons employed by a Panchayat Samiti before April 4, 1973 and who were in service at the commencement of the Amending Act, "shall continue to serve on the same terms and conditions on which they were employed by the Panchayat Samiti" until they are absorbed in the Government Service or retire in such manner as may be prescribed.

Summary: Section 35(1) of the Act empowers the State Government to place at the disposal of a Panchayat Samiti such of its servants as are required for the implementation of the schemes annexed therewith, and for such other duties and functions as may be assigned to them by the Panchayat Samitis from time to time.

Summary: The appellant was appointed as a clerk on June 1, 1963 by the Panchayat Samiti, Loharu.

Summary: He was confirmed in that post ill course of time.

Summary: On January 21, 1974, he was promoted as a Head Clerk on an ad hoc basis.

Summary: On March, 14 1975 a resolution was passed by the Samiti regularising the post of Head Clerk.

Summary: Acting in pursuance of the provision of Section 14(1) of the.

Summary: the Amending Act, The Government of Haryana notified the absorption of the appellant as a clerk, though he was working as a Head Clerk since January 21, 1974.

Summary: Being aggrieved the appellant filed a Writ Petition and prayed for a direction to absorb him as a Head Clerk.

Summary: The Writ Petition having been dismissed by the High Court, the appellant has filed this appeal by special leave.

Summary: Dismissing the appeal, the Court, ^ HELD: 1.1.

Summary: The Panchayat Samiti had no right to appoint the appellant to the post of Head Clerk on the date on which it purported to do so.

Summary: As a result of the deletion of Section 33 of the Act by the Amending Act of 1973, the 735 Panchayat Samiti lost its power to make appointment to the Panchayat.

Summary: It could not therefore have appointed the appellant as a Head Clerk, as it purported to do so, in January, 1974 on an adhoc basis or in April 1965 on a regular basis.

Summary: [737D] 1.2.

Summary: Though the right to be considered for promotion is a term and condition of service, in the instant case, the appointment of the appellant to the post of a Head Clerk being without the authority of law, the Government was not bound to absorb him in the post of a Head Clerk.

Summary: He was appointed lawfully to the post of a clerk and that is the post in which the Government has absorbed him.

Summary: [737C; E]


ivil Appeal No. 196 of 1 970.

From the judgment and decree dated April 21, 1969 of the Allahabad High Court in First Appeal No. 80 of 1964.

S.T. Desai, A.T.M. Sampath, Mukul Mudgal and Raju Ramachandran for the Appellants.

R.K. Garg, Mrs. Urmila Sirur and Shiv Pujan Singh, for the Respondents.

(b) of clause (I) of Article 133 of the Constitution granted by the Allahabad High Court against its judgment and decree dated April 21, 1969 disposing of appeals out of a suit for declaration and possession.

The plaintiffs filed a suit claiming that the property in dispute belonged to the Math Sauna or the deity Sri Thakur Gokarneshwar 661 Mahadeo Ji installed in the Math Sauna temple, and that Mahant Sadashiva Yati was in possession as Mahant and Sarbarakar.

It was claimed that in the event of Mahant Sadashiva Yati being found out of possession a decree for possession should be made.

Sadashiva Yati pleaded that on the death of Mahant Shivshanker Yati he was elected Mahant of Math Sauna and was, therefore, entitled as Sarbarakar to all the properties recorded in the deity Mahadeo Ji or in the name of Mahant Shivshanker Yati.

These properties included properties in village Amauli.

He asserted that Shivshanker Yati possessed no personal property.

The suit was contested by the first defendant, Kedar Nath Chaubey, also referred to as Uma Shanker Yati.

He alleged that Mahant Shivshanker Yati owned personal properties which included the properties in village Amauli, that he was the chela of Mahant Shivshanker Yati and the Amauli properties had passed to him under a will executed by the Mahant.

We are concerned in this appeal solely with the Amauli properties.

Math Sauna is an old Math situated in the village of that name in Tehsil Saidpur in the district of Ghazipur.

One of the earliest Mahants of the Math Mahant Gokaran Yati, raised a temple in the premises of the Math and installed a deity acclaimed by the name of "Gokarneshwar Mahadeo".

On his death he was succeeded by Mahant Shivbaran Yati, who executed a waqf deed on November 12, 1892 dedicating various properties to the deity with the intent that arrangements for bhog, deepdan and other expenses be met from them.

The surplus, the deed directed was to be employed for acquiring further property in the name of the deity and was not to be applied by the Sarbarakar to his personal use.

The learned Civil Judge decreed the suit but included a finding in his judgment that Sadashiv Yati was not a regularly constituted Mahant of Math Sauna and Sarbarakar of the deity.

Two appeals were filed in the High Court.

First Appeal No. 80 of 1964 was filed by Kedar Nath Chaubey @ Uma Shanker Yati against the declaration that the Amauli properties were owned by Math Sauna or the deity and that Sadashiv Yati was in possession thereof as Mahant and Sarbarakar.

The other appeal, First Appeal No. 270 of 1965 was filed by the plaintiffs for the relief that Sadashiv Yati was a properly constituted Mahant of Math Sauna and Sarbarakar of the deity.

The High Court allowed both the appeals by its judgment and decree dated April 21, 1969.

It held that the Amauli properties had been purchased by Shivshanker Yati in 1921 from 662 the personal and separate funds inherited by him from his predecessor Shivpher Yati, and that the Amauli properties must, therefore, be regarded as his personal and separate properties and they did not belong to the Math or the deity.

The present appeal is directed against that part of the judgment and decree of the High Court.

It is admitted between the parties that the Amauli properties were purchased by Mahant Shivshankar Yati for Rs. 40,000 forming part of a fund left behind by his predecessor Mahant Shivpher Yati.

The point for decision is whether the fund was the personal property of Mahant Shivpher Yati, and if so, whether it devolved on Mahant Shivshankar Yati.

The Mahants and members of Math Sauna belonged to the Dashnami Sanyasi sect.

The material on the record establishes that they could own and possess personal property.

They included sanyasis who had formerly been married men and householders, men who had passed through the grihastha ashram.

Some of them continued to possess and even to acquire personal property after taking sanyas.

It was observed in Sushil Chandra Sen vs Gobind Chandra Das(l) that Dashnami sanyasis mixed freely in the business world and carried on trade and often accumulated property.

This Court in Gurcharan Prasad vs Krishnanand (2) affirmed that Nihang Dashnami Sanyasis could pursue money lending business and could own property as absolute owners, and enjoy them as their personal property.

That certain sects of sanyasis could acquire personal property was accepted by that eminent Judge, Dr. B.K. Mukherjee, in his "Hindu Law of Religious and Charitable Trusts",(a) where he says: "A Mohunt, and for the matter of that, any other Sanyasi can acquire personal property of his own.

The Pronamis given to a Mohunt are generally his personal property.

The mere fact that a Mohunt is an ascetic does not raise any presumption that a property in his possession is not his personal property.

Strictly speaking, there is no presumption either one way or the other, and in each case the burden is upon the plaintiff to establish that the properties in respect of which he is asking for possession are properties to the possession of which he is entitled in the right in which he sues".

663 There is reason to believe that Mohant Shivbaran Yati, Mohant Shivpher Yati and Mahant Shivshankar Yati were not celibates and had been grihasthas, and were entitled to possess, enjoy and acquire personal property.

The evidence discloses that Mahant Shivpher Yati was held in high regard on account of his personal learning and attainments, and has a large number of chelas including many affluent persons from whom he received personal bhents or pranamis of large amounts of money.

His personal property, on his death, included cash, sovereigns and gold besides two fixed deposits with the Bank of Bengal of Rs. 45,000.

He had also inherited the personal property of Mahant Shivbaran Yati, who owned three private properties in village Shiv Dass in the district of Banaras.

On his death in 1917, all those properties and wealth devolved on Mahant Shivshankar Yati.

He was granted a succession certificate by the District Judge, Ghazipur in respect of the two fixed deposits made by Mahant Shivpher Yati in the Bank of Bengal.

Mahant Shivshankar Yati employed the inherited money in the purchase of two properties in village Amauli in 1921 paying Rs 30,000 for a full interest in one property and Rs. 10,000 for a moiety share in the other.

In respect of both properties, the revenue records mentioned the name of Mahant Shivshankar Yati and not that of the Math or the deity.

Small parcels of these properties were transferred by Mahant Shivshankar Yati from time to time, and none of those transfers was challenged by the plaintiffs in the present suit.

It is urged for the appellants that where a nucleus of dedicated property exists, the acquisition of additional property should be attributed to the application of the nucleus and must, therefore, be regarded as property belonging to the Math or the deity.

As has been observed, there can be no presumption either way.

All the facts and circumstances must be taken into consideration and on a balancing of the entire evidence it has to be determined whether the property can be said to belong to the Math or deity or is the personal property of the Mahant, the burden of proof resting on the party who makes the claim.

In the present case, it is difficult to conclude from the material before us that the total income from the properties belonging to the Math and the deity left any appreciable surplus after meeting the expenditure on account of bhog, arpan, deepdan, daily and annual puja and the other obligations specified in the waqf deed.

We are in agreement with the High Court that the fund from which the Amauli properties were acquired constituted the personal property of Mahant Shivpher Yati.

On his 664 death in 1917, the fund passed to Mahant Shivshankar Yati, who in 1921 employed it for the purchase of the Amauli properties.

Mahant Shivshankar Yati executed a will in 1956, and it appears beyond dispute that by virtue of this will the Amauli properties devolved on Uma Shankar Yati.

It is pointed out before us that in assessment proceedings under the U. P. Agriculture Income Tax Act 1948, the Amauli properties were described by Mahant Shivshankar Yati as properties of the Math and therefore a claim to exemption from the levy was made.

The High Court has found that the claim was not accepted by the assessing authority, and that the position in regard to those properties taken in the assessment proceedings was adopted by the Mahant only for the purpose of escaping personal liability to tax.

We concur with that finding.

In our judgment, the High Court is right in the view that the Amauli properties constitute the personal property of Uma Shankar Yati and do not form part of the properties of the Math Sauna or of the deity, Sri Thakur, Gokarneshwar Mahadeoji.

In the result, the appeal is dismissed with costs.

P.B.R. Appeal dismissed.

Summary: The plaintiffs in their suit claimed that the properties in dispute belonged to the Math Sauna temple and that one of the plaintiffs Mahant Sadashiva Yati on the death of his predecessor was elected as Mahant of the temple and that therefore as Sarbarakar he was entitled to all the properties recorded in the name of the deity or his predecessor.

Summary: The defendant claimed that by virtue of a will executed by Mahant Shivshankar Yati, the predecessor Mahant, the properties in dispute which were his personal properties devolved on him.

Summary: The Civil Judge decreed the plaintiffs ' suit with a finding that Mahant Sadashiv Yati was not the Sarbarakar.

Summary: Upholding the respondent 's claim, the High Court in appeal, held that the properties did not belong either to the Math or the deity but were the personal and separate properties of Mahant Shivshankar Yati.

Summary: In appeal to this Court the appellants impugned the correctness of the High Court 's view.

Summary: Dismissing the appeal, ^ HELD: The properties in dispute did not form part of the properties of Math Sauna or of the deity but were the personal properties of the respondent.

Summary: [664 D E] It is well accepted that certain sects of Sanyasis (such as Dashnami Sanyasis in this case) could acquire personal property of their own and that the pronamis given to a Mahant are generally his personal property.

Summary: The mere fact that a Mahant is an ascetic does not raise any presumption that the property in his possession is not his personal property.

Summary: There is no presumption either way.

Summary: In each case the burden is upon the plaintiff to establish that the properties in respect of which he is asking for possession are properties to which he is entitled.

Summary: [662 F G] 660 In the instant case the three earlier Mahants before they took to sanyasa had been grahasthas.

Summary: They were entitled to possess, enjoy and acquire personal property.

Summary: Mahant Shivpher Yati, one of the predecessor Mahants, whose reputation as a man of learning and personal attainments was high, received personal bhents from many of his affluent chelas.

Summary: In addition, on the death of his predecessor Mahant Shivbaran Yati.

Summary: Mahant Shivpher Yati inherited his personal property, all of which devolved on Shivshankar Yati.

Summary: A succession certificate in respect of these properties was granted in the name of Shivshankar Yati.

Summary: The revenue records also showed him as the owner of the properties and not the Math or the deity.

Summary: None of the transfers of small parcels of these properties made by Mahant Shivshankar Yati from time to time was challenged by the plaintiffs at any time.

Summary: [663 A l] Whether a property was acquired by the application of the nucleus could only be determined after taking into consideration all the facts and circumstances of a case and on a balancing of the entire evidence.

Summary: The burden of proof rests on the party making the claim.

Summary: [663 F G] In the present case there is no material on record to how whether the total income from the properties belonging to the Math and the deity, left any appreciable surplus after meeting the expenditure on bhog and other ceremonies.

Summary: The High Court rightly held that the fund from which the properties were acquired constituted the personal property of Mahant Shivpher Yati on whose death Shivshankar Yati employed it for the purchase of the properties and by virtue of his will the properties devolved on the respondent.

Summary: [663 H]


Appeal No. 101 of 1959.

Appeal by special leave from the judgment and order dated November 8, 1957, of the Deputy Custodian General, Evacuee Property, Now Delhi Revision Petition No. 17 R/55 of 1955.

Achhru Ram and K. L. Mehta for the appellants.

B.K., Khanna and, T. M. Sen, for the respondent No. 1.

N.S. Bindra and A. G. Ratnaparkhi, for the respondents Nos.

March 15.

The Judgment of the Court was delivered by MUDHOLKAR J.

The appellants who are admittedly displaced persons from West Pakistan were granted quasi permanent allotment of 24 standard acres and 15 3/4 units in the village of Raikot in Ludhiana District in 1949.

Their father Sardar Nand Singh who was 42 330 found entitled to quasi permanent allotment of 40 standard acres and 5 1/4 units of land was given quasipermanent allotment in another village named Humbran in the same district.

The two villages are, however, 25 miles or so distant from each other.

Nand Singh, therefore, made an application for consolidation of his lands with those of the appellants in the village Raikot.

During the pendency of this application he died and after his death, the, application was continued by the appellants.

This application was rejected by the Assistant Custodian on July 23, 1951 on the ground that no land was available in the village Raikot.

A revision petition preferred by the appellants against the order of the Assistant Custodian was dismissed by the Additional Custodian on August 20, 1952.

On October 7, 1952 the appellants preferred a revision application before the Custodian General.

During the pendency of the revision application the Additional Custodian for the State of Punjab cancelled the allotment of fourteen quasi permanent allottees of the village Karodian in the same district on the ground that these persons were entitled to allotment of suburban land a had been wrongly fitted in the village Karodian.

Acting suo motu the Additional Custodian made an order on October 31, 1952 cancelling the order of allotment of land in the village Raikot made in favour of the appellants in the year 1949 and instead allotted to them land in Karodian in substitution of :,the lands at Raikot and of the lands allotted to their father.

The land allotted was out of the land released upon the cancellation of allotment of lands in favour of the aforementioned 14 allottees.

These fourteen allottees preferred an application for review of the order cancelling their allotment on the ground that this cancellation was a result of misapprehension of the actual facts and that they were not entitled to allotment of suburban lands at all.

The appellants also preferred an application for review of the order cancelling their quasi permanent allotment in the village Raikot.

The Additional Custodian for the State of Punjab recommended to the Custodian General the restoration 331 of the land to the 14 allottees which had been taken away from them by reason of cancellation of the allotment in their favour by the order dated October 31, 1952.

The Additional Custodian admitted that these persons were not entitled to allotment of suburban land and that consequently their allotment had been wrongly made but referred the matter back to the Additional Custodian for decision.

The application made by the appellants was kept pending till the decision of the application of the 14 allottees of Karodian.

The Additional Custodian, however, dismissed the application on the ground that r. 14(6) of the Evacuee Property Rules which came into force on July 22, 1952, stood in the way of cancellation of the allotment in favour of the appellant.

On December 17, 1954, the Deputy Custodian General, before whom these allottees had preferred an application for revision, revised the order of the Additional Custodian and restored to the 14 allottees of Karodian the land which had been originally allotted to them.

and allotment of which had been cancelled earlier.

As a result of this order the allotment of Karodian land made in favour of the appellants automatically stood cancelled.

On January 6, 1955, the appellants moved the Deputy Custodian General for calling up their review application and for revising the order of October 31, 1952 passed by the Additional Custodian cancelling the allotment of Raikot lands which had originally been made in their favour in the year 1949.

Consequent upon the cancellation of the appellants ' allotment of the Raikot land they were allotted to respondents 2 to 4.

These persons were, therefore, impleaded as parties to the proceedings before the Deputy Custodian General.

By the order dated November 8, 1957 the Deputy Custodian General dismissed the appellants ' application.

The appellants have, therefore, come up to this Court by way of appeal with special leave.

The ground on which the appellants ' application was rejected by the Deputy Custodian General was that his jurisdiction to revise the order has been 332 taken away by virtue of the provisions of , (44 of 1954) and the notification issued thereunder on March 24, 1955.

In taking this view he has relied upon the decision in Bal Mukund vs The State of Punjab (1).

In that case the Court has held that the powers of the Custodian General to deal with matters of this kind have been taken away by the , and that these powers now vest in another authority and that there is no provision for continuing the pro ceedings which had been commenced under the , but had not been concluded.

Mr. Achhruram for the appellants challenged the correctness of this decision.

There is no specific provision in this Act to the effect that after its commencement the jurisdiction of the various authorities created by the , to deal with the allotment or cancellation of allotment of evacuee property shall cease.

What is urged by Mr. Khanna on behalf of the Custodian General is that this is the effect of the provisions of sections 12(2) and 19 of the Act.

Section 12 of the 1954 Act empowers the Central Government to acquire evacuee property for rehabilitation of displaced persons by publishing in the official gazette a notification to the effect that it has decided to acquire such evacuee property in pursuance of this provision.

It is common ground that by notification section R. 0. 697 dated March 24, 1955 the Central Government decided to acquire all evacuee property allotted to displaced persons by the Custodian under the "Conditions" contained in the notification of the Government of Punjab in the Department of Rehabilitation, No. 4892 6 dated July 8, 1949, except certain categories of property specified in the schedule.

The Raikot lands were allotted to the appellants under the aforesaid notification of the Government of Punjab.

It is not disputed on their behalf that they do not fall within any of the excepted categories of property, set out in the schedule.

Sub section 2 of section 12 of the Act (1) I.L.R. 1957 Punj.

333 provides that on the publication of the notification under sub section 1 the right, title or interest of any evacuee in the property specified in the notification shall immediately stand extinguished and that property shall vest absolutely in the Central Government free from all encumbrances.

The power of the Custodian under the , to allot any property to a person or to cancel an allotment existing in favour of a person rests on the fact that the property vests in him.

But the consequence of the publication of the notification by the Central Government under section 12(1) of the with respect to any property or a class of property would be to divest the Custodian completely of his right in the property flowing from section 8 of the , and vest that property in the Central Government.

He would, therefore, not be competent to deal with the property in any manner in the absence of any provision in either of these two enactments permitting him to do so.

No provision was, however, pointed out to us in either of these Acts whereunder despite the Vesting of the property in the Central Government the Custodian was empowered to deal with it.

Sub section

4 of section 12 of the 1954 Act provides that all evacuee property acquired under that section shall form part of the compensation pool.

Under section 16(1) of this Act the Central Government is empowered to take such measures as it considers necessary or expedient for the custody, management and disposal of the compensation pool.

Sub section

2 of section 16 empowers the Central Government to appoint such officers as it deems fit or to constitute such authority or corporation as it deems fit for the purpose of managing and disposing of the properties forming part of the compensation pool.

Section 19 of the Act provides that notwithstanding anything contained in any contract or any other law for the time being in force but subject to the rules that may be made under the Act the managing officer or managing corporation may cancel any allotment etc., under which any evacuee property acquired under the Act is held or 334 occupied by a person whether such allotment or lease was granted before or after the commencement of the Act.

This provision thus confers the power to deal with evacuee property acquired under the Act only on a managing officer appointed or managing corporation constituted under the Act and makes no mention whatsoever of the Custodian appointed under the .

No doubt, under section 10 of the the Custodian is empowered to manage evacuee property and in exercise of his power he will be competent to allot such property to any person or to cancel an allotment or lease made in favour of a person.

Apart from the fact that subsequent to the issue of the notification under section 12(1) of the , the property would cease to be evacuee property, the aforesaid powers of the Custodian would be in conflict with those conferred by section 19 of the 1954 Act on a managing officer or a managing corporation constituted under that Act.

In other words, to that extent the provisions of section 10 of the 1950 Act and section 19 of the 1954 Act cannot stand together.

As already stated the powers conferred by sub section

(1) of section 19 of the 1954 Act are to prevail notwithstanding anything contained in any other law for the time being in force.

Therefore, they must prevail over the provisions of B. 10 of the .

It is true that there, is nothing on record to show that a managing officer was appointed with respect to the Raikot properties acquired under the notification dated March 24, 1955.

But it is not necessary to ascertain that fact.

The point is, who, after the coming into force of the 1954 Act could cancel an allotment.

Section 10 says that only a managing officer or a managing corporation can do so.

This means that no one else can do so even though some other law may have authorised another person or authority to cancel an allotment.

Mr. Achhruram, however, contended that the appellants ' rights were protected by section 10 of the .

Section 10 runs as follows: 335 "Special procedure for payment of compensation in certain cases.

Where any immovable property has been leased or allotted to a displaced person by the Custodian under the conditions published (a)by the notification of the Government of Pun.

jab in the Department of Rehabilitation No. 4892 S or 4892 S dated the 8th July, 1949, or (b)by the notification of the Government of Patiala and East Punjab States Union in the Department of Rehabilitation No. 8R or 9R, dated the 23rd July, 1949, and published in the official Gazette of that State dated the 7th August, 1949, and such property is acquired under the provisions of this Act and forms part of the compensation pool, the displaced person shall, so long as the property remains vested in the Central Government, continue in possession of such property on the same conditions on which he held the property immediately before the date of the acquisition, and the Central Government may, for the purpose of payment of compensation to such displaced person, transfer to him such property on such terms and conditions as may be prescribed.

" It is followed by an explanation; but that explanation has no bearing upon the point urged by Mr. Achhruram.

It is no doubt true that the Raikot lands were allotted to the appellants under the notification referred to in el.

(a) of this section and, therefore, they would be entitled to the benefits conferred by this section provided they satisfied all the other requirements of this section, express or implied.

It is implicit in this section that the displaced person to whom land was allotted "held" the land and was in possession of such property at the date of the notification.

It is not disputed that the appellants ceased to hold and had lost possession of the Raikot lands before the publication of this notification.

Even assuming that the order of the Custodian cancelling the allotment in their favour was erroneous there will be no difference in the result because what is essential is the facts of holding and possession of the land on the date of the notification.

336 Mr. Achhruram then referred to the "Conditions" on which allotments of land may be made under the notification referred to in sub section

10(a) and pointed out that under condition No. 6 the Custodian or rehabilitation authority would be competent to resume or cancel an allotment only on one of the grounds set out in that condition.

He said that the cancellation of the allotment in favour of the appellants was impermissible inasmuch as it was not based upon any of the grounds set out in the 6th condition.

That may or may not be so.

We would repeat that the appellants had lost their possession before the publication of the notification and are thus not entitled to the protection of the section.

Moreover, the Custodian, by reason of the divesting of the property, as from March 24, 1955, had become functus officio with respect to it and could not rectify any error made by him in the past in the matter of cancellation of allotment.

It is true that had the appellants been in possession at the critical time they would have had the right to obtain a permanent transfer in their favour of the Raikot lands and by virtue of what happened and without any fault on their part they have been deprived 'of that right.

That is indeed unfortunate but none of the authorities created by the could rectify the wrong that has been done by them to the appellant.

The question whether it could be rectified by any of the authorities constituted by the or not was not canvassed before us and, therefore, there is no occasion for us to say anything about it.

Mr. Achhruram contended that r. 74 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955 stood in the way of the Custodian allotting the Raikot property to the respondents during the pendency of the proceedings before the Custodian General.

That rule reads as follows: "Allotments which are the subject matter of dispute.

No property in a rural area in respect of which any case is pending in a Civil Court or before a Deputy Custodian, Custodian or Custodian General, shall be transferred to the allottee".

337 The aforesaid rule is in Chapter X headed "Payment of compensation under section 10 of the Act" and deals with a transfer of property to an allottee by way of final settlement of his claim to compensation and does not deal with the question of allotment on a quasi permanent basis.

Moreover, this rule applies to a proceeding before an authority created by the and not to an authority created by the .

There is, therefore, no substance in this argument.

Finally Mr. Achhruram referred to section 17 of the 1954 Act and to r. 102 of the Rules framed thereunder and said that the powers of the managing officers appointed under the Act are confined only to properties which are entrusted to them for management and not with respect to any other property.

Section 17 deals with the function; and duties of managing officers and managing corporation.

Sub section

(1) provides that managing officers and managing corporations will perform such functions as may be assigned to them under the Act.

Sub section

(2) provides that subject to the provisions of the Act and the rules made thereunder, a managing officer or a managing corporation may, among other things, take such measures as he or it considers it necessary or expedient for the purpose of securing, administering, preserving, managing or disposing of any property in the compensation pool entrusted to him or it. etc.

The argument is that unless there is such "entrustment" the managing officer or managing corporation has no function to perform with respect to evacuee property.

His contention appears to be that there is nothing to show that this property was "entrusted" to a managing officer.

In the first place the section confers the particular powers On managing officers or managing corporations only and no one else.

Therefore, even if no managing officer or managing corporation was appointed with respect to that property no one else could exercise the power of cancellation of allotment.

Further, there is no ground in the special leave petition or in the statement of the 43 338 case that there is no entrustment in fact of this property or this class of properties to a managing officer or managing corporation.

He cannot, therefore, be permitted to make out a new case at this stage of argument.

That apart, this argument assumes that the property, despite the publication of the notification under section 12(1) of the Act continues to be evacuee property.

Again, this provision is a general provision and the particular provision regarding cancellation of allotment is section 19(1) of the Act which does not refer to entrustment at all and it is this provision which must prevail over the general provision.

He then contends that the provisions of section 19(1) of the Act being subject to rules made under the Act must be read along with r. 102 which deals with cancellation of allotments of leases.

That rule reads thus: "Cancellation of allotments and leases A managing officer or a managing corporation may sell any property in the compensation pool entrusted to him or to it, cancel an allotment or terminate a lease, or vary the terms of any such lease or allotment if the allottee or lessee, as the case may be (a)has sublet or parted with the possession of the whole or any part of the property allotted or leased to him without the permission of a competent authority, or (b)has used or is using such property for a purpose other than that for which it was allotted or leased to him without the permission of a competent authority, or (c) has committed any act which is destructive of or permanently injurious to the property, or (d) for any other sufficient reason to be recorded in writing; Provided that no action shall be taken under this rule unless the allottee or the lessee, as the case may be, has been given a reasonable opportunity of being heard.

" He points out that in the first place, the rule speaks of land 'entrusted ' to the manager and, therefore would operate only if entrustment is established.

What we have said in regard to section 17 would apply 339 here also.

He then says that this rule restricts the powers of a managing officer or a managing corporation in the matter of cancellation of allotment in the sense that it permits cancellation only on certain specified grounds and, therefore, it cannot be said that section 19(1) of the Act is completely in conflict with section 10 of the in so far as the question of cancellation of allotment is concerned.

We cannot accept the argument because, apart from the fact that the acquired properties have ceased to be evacuee properties, el.

(d) of r. 102 permits the managing officer or managing corporation to cancel allotment "for any other sufficient reason to be recorded in writing".

The only effect of r. 102 is to permit cancellation 'of an allotment for reasons stated.

That is all.

In our opinion, therefore, this rule does not help the appellants.

Mr. Khanna had raised three other points but upon the view which we have taken as to the effect of sections 12 and 19 of the Act, it is not necessary to consider them.

The appeal is accordingly dismissed.

We, however, make no order as to costs because had there been no delay on the part of the Custodian General in dealing with the revision application the present situation would not have arisen.

Appeal dismissed.

Summary: The appellants who are displaced persons from West Pakistan, were granted quasi permanent allotment of some lands in village Raikot in 1949.

Summary: On October 31, 1952, the Assistant Custodian cancelled the allotment of 14 allottees in village Karodian, and also cancelled the allotment of the Appellants in Raikot but allotted lands to them in village Karodian, and allotted the lands of Raikot to other persons.

Summary: The 14 allottees of village Karodian as well as the appellants applied for review of the orders of cancellation of their allotment.

Summary: The application of the 14 allottees was dismissed.

Summary: They preferred a revision to the Custodian General who cancelled the appellant 's allotment (1) Cal.

Summary: 926. 329 in Karodian and restored the allotment of the 14 allottees on December 17, 1954 Thereupon,, on January 6, 1955, the appellants moved the Custodian General for calling up their review application and for revising the order of October 31, 1952, cancelling their allotment in Raikot.

Summary: The Custodian General refused to revise the order on the ground that his power to revise had been taken away by the .

Summary: The appellants contended that the, Custodian General had the power to revise the order.

Summary: Held, that after the enactment of the, , the Custodian General ceased to have the power to cancel allotments.

Summary: By, the issuing of a notification under, section 12(1) of this Act, the Fight, title or interest of the evacuee in the property specified in the notification was extinguished and the property vested absolutely in the Central.

Summary: Government.

Summary: The right of the Custodian manage the property under the , came to an end and the management vested in a new set of officers.

Summary: Even though no managing officer was appointed or a managing corporation, constituted under the new Act to manage the property no one else could 'exercise the power of cancellation of allotment.

Summary: Bal Mukund vs The State of Punjab, I.L.R. 1957 Punj.

Summary: 712, approved.


ivil Appeals Nos.

4582 4585 of 1989.

125 From the Judgment and Order dated 29.7.1988 of the Allahabad High Court in C.M.W.P. No. 11933 & 16493/1987.

1573 1/1987 & 12373/1987.

R.K. Garg, S.P. Singh, N.M. Popli, R.B. Misra, Uma Nath Misra and R.C. Kaushik for the Appellants.

R.B. Mehrotra for the Respondent.

The Judgment of the Court was delivered by MISRA, J.

Special leave granted.

The short question in these appeals is as to whether the High Court was right in upholding the decision of the Uttar Pradesh Public Service Commission to re hold the recruitment examination.

On the requisition of the State Government the State Public Service Commission had undertaken the recruitment to the post of Upper Zila Basic Shiksha Adhikari (Women), District Inspectress of Girls Schools/Associate Regional Inspectress of Girls Schools in Uttar Pradesh Educational Service Junior Scale (Women 's Branch) The advertisement inviting applications from eligible candidates was published on May 5, 1985 and a corrigendum was published on June 8, 1985.

The recruitment examination was in two stages written and interview/personality test.

After the written examina tion was over, on the basis of the results thereof success ful candidates upto a base limit have to be called to be interviewed.

On account of improper feeding into the comput er some of the candidates who had better performance in the written examination were not called and candidates securing lesser marks in the written examination were not only called for interview but were also finally selected.

When this position was known and upon an inquiry was factually estab lished, the Public Service Commission decided to cancel the entire recruitment examination and asked for re holding of it.

The High Court has upheld the action of the Public Service Commission and has dismissed the writ petitions.

We have heard counsel for the parties and are of the view that when no defect was pointed out in regard to the written examination and the sole objection was confined to exclusion of a group of successful candidates in the written examination from the interview, there was no justification for cancelling the written part of the recruitment examina tion.

On the other hand, the situation could have been appropriately met by setting aside the recruitment and asking for a 126 fresh interview of all eligible candidates on the basis of the written examination and select those who on the basis of the written and the freshly held interview became eligible for selection.

We allow the appeals, set aside the judgment of the High Court and direct that the order of the Public Service Com mission cancelling the written examination shall stand vacated.

In lieu thereof we direct that the results of the written examination shall stand sustained and shall form the basis for the interview part of the recruitment and on the basis of the two examinations and in terms of the recruit ment rules fresh selections shall be made.

We would clarify that with the dismissal of the special leave petitions the selection of the two Scheduled Caste candidates and five Backward Class candidates has become final and would not be disturbed.

The State Public Service Commission should have been more careful in dealing with the matter so that four years in the process of recruitment would not have been lost and the public cause would not have suffered; public time would not have been wasted in requiring re doing of what had once been done and the litigation could have been avoided.

We have also not been able to appreciate the justification for cancellation of the written part of the recruitment examina tion and drive the candidates to litigation.

On the facts alleged we direct that the recruitment which is now to be re done by completing the interview examination should be finalised within four months hence.

There shall be no order as to costs.

T.N.A. Appeals allowed.

Summary: The Uttar Pradesh Public Service Commission conducted recruitment examination to the post of Upper Zila Basic Shiksha Adhikari (Women) in two stages written test and interview.

Summary: The Commission cancelled the entire recruitment examination for re holding it, after it was found that due to improper feeding into the computer candidates who secured lesser marks in the written examination were interviewed and finally selected while candidates who had better performance were not called for interview.

Summary: Writ petitions challenging the action of the Commission were dismissed by the High Court.

Summary: Hence these appeals.

Summary: Allowing the appeals and setting aside the judgment of the High Court, this Court, HELD: When no defect was pointed out in regard to the written examination and the sole objection was confined to exclusion of a group of successful candidates in the written examination from the interview, there was no justification for cancelling the written part of the recruitment examina tion.

Summary: [125G] The situation on the other hand could have been appro priately met by setting aside the recruitment and asking for a fresh interview of all eligible candidates on the basis of the written examination and selection of those who on the basis of the written and the freshly held interview became eligible for selection.

Summary: [125H; 126A]