Case: B.R. Shankaranarayana &amp; Ors Vs. State Of Mysore &amp; Ors

by device, purports to make a law which, though in form appears to be within its sphere, in effect and substance, reaches beyond it. 14. Beyond attempting the argument that the impugned Act is a piece of colourable legislation, learned Counsel for the appellant has not succeeded in substantiating his contention that the Act and the rules made thereunder are merely a device for removing the present incumbents from their office. The provisions of the Act and the rules made thereunder plainly provide for the abolition of hereditary village offices and make those offices stipendiary posts. The Act makes no secret of its intention to abolish the hereditary posts. 15. It is argued that even after abolition, the same posts are sought to be continued. It is no doubt true that the names of the offices have not been changed but there is a basic structural difference between the posts that have been abolished and the posts that have been created. The posts created by the new Act are stipendiary posts. They carry salaries according to the grades created by the rules. The incumbents are transferable and their service is pensionable. Different qualifications are prescribed for the new posts. From a consideration of the incidents attaching to the new posts it is clear that the old posts have been abolished and new posts have been created and that the whole complexion of the posts has been changed. 16. The result is that in our opinion the impugned Act cannot be held to be a piece of colourable legislation and as such invalid. 17. Now we may deal with Civil Appeal No. 190 of 1965. In the affidavit filed in support of Writ Petition No. 177 of 1963 out of which the above civil appeal arises it has been stated that the Madras Hereditary Village Offices Act No. III of 1895 does not in terms apply to the village offices of the district of South Kanara, that its principles have been observed in common practice by the revenue authorities, and that their appointments are governed by the Standing Orders of the Madras Board of Revenue which have not been repealed by the Act. The petitioners case is that a consideration of the Madras Boards Standing Orders would show that the post of karnam is a civil post coming within the ambit of Art. 311 and that, therefore, the abolition of their posts in effect amounts to removal within the meaning of that article. 18. It is no doubt true that the Madras Village Offices Act, 1895, does not apply to South Kanara District, but the hereditary principle has been applied to village offices in the South Kanara District in accordance with the instructions contained in the Madras Revenue Boards standing orders and the impugned Act has abolished the principle of heredity in making appointments to the village offices.Learned Counsel for the appellant has argued, relying on the decision of the Privy Council in Musti Venkata Jagannadha v. Musti Veerabhadrayya, 41 Mad LJ 1: (AIR 1922 PC 96) that the karnam under the Madras Karnams Regulation is a personal appointee and that there is no absolute right of hereditary succession to that office and that the principle of heredity does not apply to that office. The correct position with regard to karnams (shanbhogs) in South Karnam District, will be evident from the following extracts: "Proceedings of the Board of Revenue, Madras, dated November 21, 1868, read as follows: "The Village Offices in Canara are not hereditary by law but good policy requires that the hereditary principle should be observed as far as the efficiency of administration permits in order that the value of the office may be enhanced as much as possible and that the services of men of good social standing whom the emoluments of the Office alone would not attract may be procured." Standing order, dated 7th July 1883 of the Collector, South Kanara, reads: "Subordinate Revenue Offices in the District are hereby directed to bear in mind that in submitting nominations to the posts of Village Officials, the principle to be invariably followed is that the heir of the last permanent incumbent is the man entitled to the vacancy, unless he is clearly unfit to hold it. In the case of a minor heir, or one disqualified for active service by near relationship to a dismissed incumbent, some one should be recommended to act during the minority of the heir of the lifetime or the dismissed incumbent as the case may be." Standing Order, dated August 24, 1882, of the Collector, South Kanara, reads: "(i) Succession to village offices will in future be regulated on the principle set forth in the Collectors Standing Order of 1883, namely, that the heir of the last permanent incumbent is the man entitled to the post, unless he is already unfit to hold it. (ii) The Collector takes the opportunity of directing that a register be opened in each Taluk in the annexed form showing the name and other description of permanent incumbent of each post at present. One whole page should be left for each office to show the changes in the office-holders from time to time. If the register is carefully maintained, it will greatly facilitate the speedy and satisfactory disposal of claims to vacant village offices, which, owing to want of such a Register at present, are made the subject of lengthy enquiries." 19. It is not, therefore, correct to say that the principle of heredity does not apply to the appointments of shanbhog in the District of South Kanara. The fact that the Boards standing orders have not been repealed in their application to the district of South Kanara, which is now part of the State of Mysore, will not make any difference since the Boards standing orders recognise the principle of heredity underlying the Madras Hereditary Village Offices Act. The Schedule to the impugned Act specifically repealed the Madras Hereditary Village Offices Act and the Madras Karnams Regulation.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]9. On an examination of the material provisions of the impugned Act it is clear that its object and intendment is to abolish all the hereditary village offices, viz., patels, shanbhogs, etc., which were held hereditarily before the commencement of the Constitution and the emoluments appurtenant thereto11. In the territories forming part of the present State of Mysore, in the districts of South Kanara and Coorg the village offices were filled by persons belonging to a particular family. They had a preferential right to be appointed to those posts if they possessed the prescribed qualifications. In Raos case, AIR 1961 SC 564  , this Court held that a law which recognised the custom by which a preferential right to an office vested in the members of a particular family was violative of the fundamental right guaranteed by Art. 16. The Act, in abolishing all the hereditary village offices merely gave effect to the principle established by the said decisionWe are unable to accede to this contention13. As pointed out by this Court in Gajapati Narayan Deos case, AIR 1953 SC 375  , the whole doctrine of colourable legislation resolves itself into the question of competency of a particular legislature to enact a particular law. If the legislature is competent to pass the particular law, the motives which impel it to pass the law are really irrelevant. It is open to the Court to scrutinize the law to ascertain whether the legislature by device, purports to make a law which, though in form appears to be within its sphere, in effect and substance, reaches beyond it14. Beyond attempting the argument that the impugned Act is a piece of colourable legislation, learned Counsel for the appellant has not succeeded in substantiating his contention that the Act and the rules made thereunder are merely a device for removing the present incumbents from their office. The provisions of the Act and the rules made thereunder plainly provide for the abolition of hereditary village offices and make those offices stipendiary posts. The Act makes no secret of its intention to abolish the hereditary posts15. It is argued that even after abolition, the same posts are sought to be continued. It is no doubt true that the names of the offices have not been changed but there is a basic structural difference between the posts that have been abolished and the posts that have been created. The posts created by the new Act are stipendiary posts. They carry salaries according to the grades created by the rules. The incumbents are transferable and their service is pensionable. Different qualifications are prescribed for the new posts. From a consideration of the incidents attaching to the new posts it is clear that the old posts have been abolished and new posts have been created and that the whole complexion of the posts has been changed16. The result is that in our opinion the impugned Act cannot be held to be a piece of colourable legislation and as such invalid18. It is no doubt true that the Madras Village Offices Act, 1895, does not apply to South Kanara District, but the hereditary principle has been applied to village offices in the South Kanara District in accordance with the instructions contained in the Madras Revenue Boards standing orders and the impugned Act has abolished the principle of heredity in making appointments to the village offices.Learned Counsel for the appellant has argued, relying on the decision of the Privy Council in Musti Venkata Jagannadha v. Musti Veerabhadrayya, 41 Mad LJ 1: (AIR 1922 PC 96) that the karnam under the Madras Karnams Regulation is a personal appointee and that there is no absolute right of hereditary succession to that office and that the principle of heredity does not apply to that office19. It is not, therefore, correct to say that the principle of heredity does not apply to the appointments of shanbhog in the District of South Kanara. The fact that the Boards standing orders have not been repealed in their application to the district of South Kanara, which is now part of the State of Mysore, will not make any difference since the Boards standing orders recognise the principle of heredity underlying the Madras Hereditary Village Offices Act. The Schedule to the impugned Act specifically repealed the Madras Hereditary Village Offices Act and the Madras Karnams Regulation.