Petition NO
530 of 1959
222 Petition for cancellation of the decree dated November 25 1949 granted to the Respondent by the Order in Council in Privy Council Appeal No XI of 1948
C K Daphtary Solicitor General for India and B R L Iyengar for the petitioner
K R Bengeri and A G Ratnaparkhi for the respondent
March 9
The Judgment of the Court was delivered by GAJENDRAGADKAR J
This petition has been made under section 10 of the Bombay Hereditary Offices Act 1874 hereinafter called the Act for cancellation of the decree granted to the respondent by the Order in Council dated November 25 1949 in so far as the said decree purports to operate on or include any right to the office of the Patilki and 11 Watan lands attached thereto
These lands are situated at Kirtgeri in the Taluk of Gadag
They form part of a Watan and according to the revenue records they have been assigned as remuneration to the officiator for the time being under section 23 of the Act
The petitioner has obtained a certificate prescribed under section 10 and he contends that as a result of the said certificate this Court should cancel the decree as claimed by him in the petition
It appears that the respondent had filed a suit against the petitioner in the Court of the First Class Sub Judge at Dharwar Civil Suit No 18 of 1934 and in the said suit he had claimed partition and possession of the properties as an adopted son of Shiddangouda
These properties were and are in the possession of the petitioner
The trial court passed a decree in favour of the respondent
The petitioner then preferred an appeal No 182 of 1935 in the High Court of Bombay
His appeal was allowed and the decree passed by the trial court was reversed
The respondent then challenged the High Court decree and went up to the Privy Council in Appeal No 11 of 1948
His appeal was allowed and the Privy Council held that the decree passed by the trial court should be restored
Accordingly an Order in Council was drawn up on November 25 1949 under this order 223 the respondent was entitled to recover by partition a half share in the properties in suit
He was also entitled to mesne profits past and future till the recovery of possession or three years and an enquiry was directed in that behalf
Amongst the properties in which the respondent had thus become entitled to claim a share are the 11 lands in question
In due course the respondent filed an execution application Darkhast No 41 of 1950 in the Court of the Subordinate Judge at Dharwar
The petitioner then contended that the 11 lands in question were governed by the provisions of the Act they were assigned as remuneration to the office of the Patil and as such they could not be partitioned
It was also urged on his behalf that in the original suit the respondent had not claimed any declaration that he was entitled to the office of Patil and that without such a claim the 11 lands in question could not be claimed by the respondent
In support of these pleas the petitioner relied upon the provisions of the Act contained in sections 7 10 11 13 24 25 and 36
Pending the execution proceedings the petitioner applied for the grant of the prescribed certificate under section 10 of the Act and a certificate was accordingly issued by the Collector addressed to the Civil Judge Senior Division Dharwar
Thereupon the said court acted upon the certificate and cancelled the execution process which had been issued against the Patilki assigned property of Kirtgeri
The respondent challenged the said order before the Bombay High Court and his challenge was upheld by the said High Court
The High Court followed its own earlier Full Bench decision in Rachapa vs Amingouda 1 and held that the certificate issued by the Collector under section 10 was invalid in that it was addressed not to the Privy Council which was the court which passed the decree but to the Civil Judge at Dharwar
In the result the order cancelling the execution process which had been passed by the executing court was set aside and a direction was issued that the execution proceedings should proceed according to law
Thereafter the petitioner applied for a reissue of a certificate under section 10 and prayed that the certificate 1 1881 V BOM
224 should be addressed to this Court as in the meanwhile the Privy Council had ceased to have any jurisdiction and this Court had become its successor
A certificate has accordingly been issued on January 13 1958 addressed to this Court
The certificate says that the property in question has been assigned as remuneration to the office of Patil and as such it is inalienable and not liable to process of civil court and so the process of attachment levied against the said property should be removed and the decree in so far as it relates to the said property should be cancelled
It appears that after this certificate was issued by the Assistant Commissioner Gadag Division the respondent filed an appeal to the Deputy Commissioner Dharwar
His appeal however failed and the certificate issued by the Assistant Commissioner has been confirmed
It is with this certificate that the petitioner has moved this Court for the cancellation of the decree in question in regard to the 11 properties at Kirtgeri
On behalf of the respondent it has been urged before us that the decision of the Bombay High Court operates as res judicata and so in view of the said decision the present certificate also should be held to be invalid
The argument is that the effect of the decision of the Bombay High Court is that the certificate should have been addressed to the Privy Council and since it is addressed to this Court it is invalid
We are not impressed by this argument
What the Bombay High Court has held is that the certificate must be issued to the court which passed the decree and if in law this Court can be said to be in effect and in substance the Court that pssed the decree then the Certificate must be held to be perfectly valid
Therefore there is no substance in the argument of res judicata
The main question which falls to be considered is whether this Court can
in view of the constitutional changes which have taken place in the meantime be said to be the Court that has passed the present decree
In our opinion the answer to this question must be in favour of the petitioner
Lot us therefore proceed to consider the relevant statutory Provisions
225 Section 2 of the Abolition of the Privy Council Jurisdiction Act 1949 has provided inter alia that as from the appointed day which was October 10 1949 the jurisdiction of His Majesty in Council to entertain  appeals and petitions from or in respect of any judgment decree or order of any court or tribunal within the territory of India shall cease save hereinafter provided
Section 4b provides that nothing contained in section 2 shall affect the jurisdiction of His Majesty in Council to dispose of any Indian appeal or petition on which the Judicial Committee has after hearing the parties reserved judgment order
This provision applied to Appeal No 11 of 1948 between the parties then pending before the Privy Council
Section 5 conferson the Federal Court corresponding jurisdiction to entertain and dispose of Indian appeals and petitions which His Majesty in Council has whether by virtue of His Majesty s prerogative or otherwise immediately before the appointed day
In other words after the appointed day the Federal Court was given jurisdiction to entertain and dispose of not only Indian appeals but also petitions and that would naturally include
a petition like the present with which we are dealing
Section 8 dealt with the effect of the orders of His Majesty in Council it provided that any order made by His Majesty in Council on an Indian appeal or petition whether before or after the appointed day shall for all purposes have the effect not only as an order of His Majesty in Council but also as if it were an order or decree made by the Federal Court in exercise of the jurisdiction conferred by this Act
This then was the position with regard to the jurisdiction and powers of the Federal Court vis a vis the appeals and petitions pending before the Privy Council and orders made on them
The next relevant provisions are contained in article 374 and article 135 of the Constitution
article 3742 provides that all suits appeals and proceedings Civil or Criminal  pending in the Federal Court at the commencement of the Constitution shall stand removed to the Supreme Court and the Supreme Court shall have jurisdiction to hear and determine the same and the judgments and orders of the Federal 29 226 Court delivered or made before the commencement of the Constitution shall have the same force and effect as if they had been delivered or made by the Supreme Court
It is with the latter part of article 3742 that we are concerned in the present petition
We have I already seen that the Order in Council issued in accordance with the judgment of the Privy Council in Appeal No 11 of 1948 had to be treated as if it was an order and decision of the Federal Court under the relevant provisions of the Act of 1949
Now another fiction has been introduced by article 3742 and the said order and decree has now to be treated as if the decree had been passed and the order had been made by the Supreme Court
That takes us to article 135
This article provides that until Parliament by law otherwise provides the Supreme Court shall also have jurisdiction and powers with respect to any matter to which the provisions of article 133 or article 134 do not apply if jurisdiction and powers in relation to that matter were exercisable by the Federal Court imme diately before the commencement of this Constitution under any existing law
We have already noticed that the Federal Court had jurisdiction to deal with a petition like the present before the commencement of the Constitution  that jurisdiction can now be exercised by this Court as a result of article 135
The position therefore is that the petition which could have been presented to the Privy Council if the jurisdiction of the Privy Council had not been abolished could have been presented before the Federal Court before the commencement of the Constitution and can be presented to this Court after the commencement of the Constitution
We therefore feel no doubt that as a result of the relevant statutory provisions to which we have referred the certificate issued in the present case to this Court is valid and must be given effect to
It is not disputed that the properties in respect of which the certificate has been issued are properties assigned as remuneration to Patilki I office and are governed by the provisions of the Act
It is also conceded that if the certificate is duly issued under section 10 of the Act it makes it obligatory on the court to 227 cancel the decree in regard to the properties covered by the certificate
Section 10 provides inter alia that when it shall appear to the Collector that by virtue of or in execution of a decree or order of any court any watan or any part thereof or any of the profits thereof recorded as such in the revenue records or registered under this Act and assigned under section 23 as remuneration of an officiator has or have after the date of this Act coming into force passed or may pass without the sanction of the State Government into the ownership or beneficial possession of any person other than the officiator for the time being the court shall on receipt of a certificate under the hand and seal of the Collector stating the particulars mentioned in the section cancel the decree or order complained of so far as it concerns the said watan or any part thereof
The only objection against the validity of the certificate is that it has been addressed to a wrong court
Since we have overruled that objection it follows that portion of the decree which concerns the watan properties must be cancelled
In the result the petition is allowed and the decree in question in so far as it purports to operate on or include any right to the office of Patilki and watan lands attached thereto at Kirtgeri as enumerated in the certificate is cancelled
Under the circumstances of this case there will be no order as to costs
Petition allowed


Summary:
The appellant s workmen were represented by a Union called Kamdar Mandal Cement Works Porbandar
The registration of the said union was cancelled and that led to the formation of two Unions the Cement Kamdar Mandal and Cement Employees Union
The Cement Kamdar Mandal gave two notices one after another to the appellant purporting to terminate two previous awards wherein the defunct union represented the workmen
Thereafter the Mandal presented fresh demands and the dispute was referred to the Tribunal
The second union the Cement Employees  Union which represented the majority of the appellant s workmen at Porbandar had been impleaded in the proceedings
The appellant raised preliminary objections before the Tribunal against the competency of the reference inter alia on the ground that the award in question by which the parties were bound had not been duly terminated under section 196 of the Act in as much as the union which purported to terminate the said award represented only a minority of workmen bound by it
The Tribunal by its interlocutory judgment found against the appellant
The dispute between the parties centres round the question as to who can issue the notice terminating the award on behalf of workmen who are bound by the award as a result of section 18 of the Act
The question therefore for decision is whether a registered trade union representing a minority of workmen governed by an award can give notice to the other party intimating its intention to terminate the award under section 196 of the 
Held that the effect of section 18 is that an award properly made by an industrial tribunal governs the employer and all those who represent him under section 18c and the employees who are parties to the dispute and all those who are included in section 18b and d
On a fair and reasonable reading of section 196 the true position is that though the expression any party bound by the award refers to all workmen bound by the award notice to terminate the said award can be given not by an individual workman but by a group of workmen acting collectively either through their union or otherwise and it is not necessary that such a group of workmen acting collectively either through their union or otherwise should represent the majority of workmen bound by the award
Thus it is open to a minority of workmen or a minority union to terminate 158 the award by which they along with other employees are bound just as much as it is open to them to raise an industrial dispute under the Act
The Central Provinces Transport Services Limited vs Raghunath Gopal Patwardhan  and The Newspapers Limited vs
The State Industrial Tribunal U P   referred to