PETITIONER: UNION OF INDIA Vs. RESPONDENT: <NAME> & ANR. DATE OF JUDGMENT06/11/1978 BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA DESAI, D.A. CITATION: 1979 AIR 366 1979 SCR (2) 229 1979 SCC (3) 4 CITATOR INFO : RF 1986 SC2045 (45) RF 1990 SC1962 (6) ACT: Code of Criminal Procedure, 1973, S. 227-order of discharge by a Special Judge, scope and ambit. HEADNOTE: The second respondent, a Land Acquisition officer, allegedly, by abusing his official position, concealed the fact that the land which was the subject matter of acquisition was really Khasmahal land belonging to the <ORG> and having made it appear that the first respondent was the undisputed owner of the same, aided and abetted him in getting a huge sum of money as compensation. The charge-sheet was submitted before the Special Judge, and the prosecution requested him to frame a charge against the respondents under ss. 5(2) and 5(1)(d) of the Prevention of Corruption Act read with s. 120B . The Special Judge, <NAME> went through the charge-sheet, statements made by the witnesses before the police and other documents, and coming to the conclusion that there was no sufficient ground for framing a charge against the respondents, discharged them under s. 227 . ,1973, after giving cogent reasons for passing the order of discharge. In revision <ORG> upheld the Special Judge's order of discharge. Dismissing the appeal by special leave, the <ORG> ^ HELD: 1. The considerations governing the interpretation of s. 227 of Cr. P.C. apply mutatis mutandis to the proceedings under the Prevention of Corruption Act , after the charge-sheet is submitted before the Special Judge. At the stage of s. 227 , the Judge has merely to sift the evidence in order to find out whether or not, there is sufficient ground for proceeding against the accused. The sufficiency of ground would take within its fold, the nature of the evidence recorded`by the police, or the documents produced before the court, which exfacie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. [231E, 233A- <CITATION> ,  I SCR 257; <CITATION> .. AIR 1967 SC 740; <CITATION> ,  2 SCR 520; applied. 2. What has been acquired is merely the Raiyyati or the lessee's interest, and as the proprietary interest vests in the <ORG> itself, there is no question of either acquiring or claiming compensation for the interest of the <ORG>. [239B] <CITATION> ., AIR 1955 SC 298; and The Special Land Acquisition officer, <CITATION> ., AIR 1972 SC 2224: applied. 230 JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 194 of 1977.

(Appeal from the Judgment and order dated 30-8-76 of <ORG> in Criminal Revision No. 88/76).

<NAME>, Addl. Sol. Gen. and <NAME> and <NAME> for the appellant.

<NAME> and <NAME> for the respondent. The Judgment of the Court was delivered by <NAME> J. This appeal is directed against the judgment dated 30th August, 1976 of <ORG> by which <ORG> has upheld the order of the Special Judge, <NAME> discharging respondents No. 1 and 2.

The facts of the case lie within a narrow compass and centre round an alleged conspiracy said to have been entered into between respondents No. 1 and 2 in order to commit offences under sections 5(2) and 5(1)(d) of the Prevention of Corruption Act (hereinafter referred to as the Act) read with section 120-B I.P.C. The main charge against the respondents was that between 19-2-1972 to 30-3-1972 the respondent entered into an agreement For the purpose of obtaining pecuniary advantage for respondent No. 1 P. K. Samal and in pursuance of the said conspiracy the second respondent <NAME>, who was the Land Acquisition officer aided and abetted the first respondent in getting a huge sum of money for a land acquired by the Government which in fact belonged to the Government itself and respondent No. 1 was a skew thereof. It is averred in the chargesheet that respondent No. 1 by abusing his official position concealed the fact that the land which was the subject matter of acquisition and was situated in Cuttack Cantonment was really Khasmahal land belonging to the Government and having made it appear that he was the undisputed owner of the same, got a compensation of Rs. 4,18,642.55. The charge-sheet contains a number of circumstances from which the inference of the conspiracy is sought to be drawn by the police. After the charge-sheet was submitted before the Special Judge, the prosecution ousted him to frame a charge against the respondents. The Special Judge, <NAME> after having gone through the charge-sheet and statements made by the witnesses before the police as also other documents came to the conclusion that there was no sufficient ground for framing a charge against the respondents and he accordingly discharged them under section 227 of the Code of Criminal Procedure, 1973 hereinafter called the Code ). The Special Judge has given cogent reasons for passing the order of discharge. The appellant went up to <ORG> in revision against the order of the Special Judge refusing to frame the charge, but <ORG> dismissed the revision petition filed by the appellant and maintained the order of discharge passed by the Special Judge. Thereafter the appellant moved this Court by ar, application for special leave which having been granted to the appellant, the appeal is now set for hearing before us.

The short point which arises for determination in this case is the scope and ambit of an order of discharge to be passed by a Special Judge under section 227 of the Code. The appeal does not raise any new question of law and there have been several authorities of <ORG> as also of this <ORG> on the various aspects and grounds on which an accused person can be discharged, but as section 227 of the Code is a new section and at the time when the application for special leave was filed, there was no direct decision of this <ORG> on the interpretation of section 227 of the Code, the matter was thought fit to be given due consideration by this <ORG>.

We might, state, to begin with, that so far as the present case (offences committed under the Prevention of Corruption Act ) is concerned it is regulated by the procedure laid down by the Criminal Law Amendment Act under which the police has to submit, charge-sheet directly to the Special Judge and the question of commitment to <ORG> does not arise, but the Sessions Judge has nevertheless to follow the procedure prescribed for trial of sessions cases and the consideration governing the interpretation of section 227 of the Code apply mutatis mutandis to these proceedings after the charge-sheet is submitted before the Special Judge.

Before interpreting and analysing the provisions of section 227 of the Code so far as pure sessions trials are concerned, two important facts may be mentioned. In the first place, the Code has introduced substantial and far reaching changes in the Code of 1898 as amended in 1955 in order to cut out delays and simplify the procedure, has dispersed with the procedure for commitment enquiries referred to m section 206 to 213 of the Code, of 1898 and has made commitment more or less a legal formality. Under the previous Code of 1898 the Magistrate was enjoined to take evidence of the prosecution witnesses after giving opportunity to the accused to cross-examine the witnesses 2nd was then required to hear the parties and to commit the acceded to <ORG> unless he chose to act under section 209 and found that there was no sufficient ground for committing the accused person for trial. Under the Code the Committing Magistrate has been authorised to peruse the evidence and the documents produced by the police and commit the case straightaway to <ORG> if the case is one which is exclusively triable by <ORG>. Thus, it would appear that the legislature while dispensing with the procedure for commitment enquiry under the Code of 1898 has conferred a dual responsibility on the Trial Judge who has first to examine the case on the basis of the statement of witnesses recorded by the police and the documents filed with a view to find out whether a prima facie case for trial has been made out and then if such a case is made out to proceed to try the same. In our view the legislature has adopted this course in order to avoid frivolous prosecutions and prevent the accused from being tried of an offence on materials which do not furnish a reasonable probability of conviction. In the instant case, as the offences alleged to have been committed by the respondents fall within the provisions of the Act, the Special Judge has been substituted for the Sessions Judge, the procedure of <ORG> having been applied fully to the trial of such cases. Thus, it is manifest that the accused has not only one opportunity and that too before the Sessions Judge for showing that no case for trial had been made out. This was obviously done to expedite the disposal of the criminal cases.

Secondly, it would appear that under section 209 of the Code of 1898 the question of discharge was to be considered by a Magistrate. This power has now been entrusted to a senior Judge, namely, <NAME> who is to conduct the trial himself and who has to decide before commencing the trial as to whether or not charges should be framed in a particular case against the respondents The discretion, therefore, is to be exercised by a senior and more experienced Judge so as to exclude any abuse of power. In this view of the matter, it is manifest that if <NAME> exercises his discretion in discharging the accused for reasons recorded by him, his discretion should not normally be disturbed by <ORG> or by this <ORG>.

Section 227 of the Code runs thus:-

"If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."

The words 'not sufficient ground for proceeding against the accused' clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not A necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really his function after the trial starts. At the stage of section 227 , the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.:

The scope of section 227 of the Code was considered by a recent decision of this <ORG> in the case of <CITATION> (1) where <NAME>, J. speaking for the <ORG> observed as follows:-

"Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the <ORG> to think that there is ground for presuming that the accused has committed an offence then it is not open to the <ORG> to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the <ORG> should proceed with the trial or not. If the evidence which the Prosecutor pro poses to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebut ted by the defence evidence; if any, cannot show that the accused committed the offence then there will be no sufficient ground for proceeding with the trial".

This Court has thus held that whereas strong suspicion may not take the place of the proof at the trial stage, yet it may be sufficient for the satisfaction of ths Sessions Judge in order to frame a charge against the accused. Even under the Code of 1898 this Court has held that a committing Magistrate had ample powers to weigh the evidence for the limited purpose of finding out whether or not a case of commitment to the Sessions Judge has been made out.

(1) [1978]1 S.C.R. 287.

16-817 SCI/78 In the case of <CITATION> .(1) this Court observed as follows:-

"No doubt a Magistrate enquiring into a case under S. 209 , Cr. P.C. is not to act as a mere Post office and has to come to a conclusion whether the case before him is fit for 8 commitment of the accused to <ORG>".

To the same effect is the later decision of this Court in the case of <CITATION> (2) where <NAME>, J. speaking for the Court observed as follows:-

"A Magistrate holding an enquiry is not intended to act merely as a recording machine. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment; and not whether there is sufficient evidence for conviction. If there is no prima facie evidence or the evidence is totally unworthy of credit; it is the duty to discharge the accused: if there is some evidence on which a conviction may reasonably be based, he must commit the case".

In the aforesaid case this <ORG> was considering the scope and ambit of section 209 of the Code of 1898.

Thus, on a consideration of the authorities mentioned above, the following principles emerge:

(1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out: (2) Where the materials placed before the <ORG> disclose grave suspicion against the accused which has not been properly explained the <ORG> will be, fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while (1) A.I.R. 1967 S.C. 740.

(2) [1969] 2 S.C.R. 520.

giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a <ORG> office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the <ORG>, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

We shall now apply the principles enunciated above to the present case in order to find out whether or not the courts below were legally justified in discharging the respondents.

Respondent No. 1 was a Joint Secretary in <ORG> from April, 1966 to January, 1969. Later he worked as Joint Secretary in <ORG> till 12-11-1971. Thereafter, respondent No. 1 was working as Joint Secretary, <ORG>. The second respondent worked as Land Acquisition officer in the <ORG>, Orissa from February 1972 to 18th August, 1973.

In the year 1969 <ORG> authorities were desirous of having a piece of land for construction of quarters for their staff posted at Cuttack. In this connection, the said authorities approached respondent No. 1 who had a land along with structure in the Cantonment at Cuttack. As <ORG> authorities found this land suitable, they approached respondent No. 1 through his mother for selling the land to them by private negotiation. As this did not materialise, <ORG> authorities moved the Collector of Cuttack to assess the price of the land and get it acquired. Accordingly, the Tehsildar of the area directed the <ORG> officer, Cuttack; to fix the valuation of the land of respondent No. 1. The <ORG> officer reported back that the land belonged to respondent No. 1 and was his private land and its value would be fixed at Rs. 3000 per guntha. It is common ground that the land in question was situated in Cuttack Cantonment and was a Khasmahal land which was first leased out to one Mr. <NAME> as far back as 1-9-1943 for a period of 30 years. The lease was given for building purposes. In 1954. Mrs. <NAME> who inherited the property after her husband's death transferred the land to respondent No. 1 with the consent of the Khasmahal authorities. When respondent No. 1 came to know that the land in question was required by <ORG> authorities, he wrote a letter to Mr. . S. <NAME> on 28th October, 1970 suggesting that the land- may be acquired but price fixed by mutual consent. It may be pertinent to mention here that in this, letter a copy of which being Ex. D-4 (12) is to be found at page 86 of the paper-book, respondent No. 1 never concealed the fact that the land really belonged to the Government. In this connection, respondent No. 1 wrote thus:-

"I have represented to you against the revenue authorities quoting a higher price for similar Government land more adversely situated and a lower price for my land despite its better strategic location".

We have mentioned this fact because this forms the very pivot of the case of the appellant in order to assail the judgment of the courts below. A perusal of this letter clearly shows that respondent No. 1 made no attempt to conceal that the land in question was, a <ORG> land which was leased out to his vendor. A copy of the original agreement which also has been filed shows that under the terms of the lease, the same is entitled to be renewed automatically at the option of the lessee and unless the lessee violates the conditions of the lease, there is no possibility of the lease being resumed. As it is, the lease had been continuing from the year 1943 and there was no possibility or its not being renewed on 1-9-1973 when the period expired. In these circumstances, therefore, it cannot be said that the letter written by respondent No. 1 referred to above was an evidence of a criminal intention on the part of respondent No. 1 to grab the huge compensation by practising fraud on the <ORG>. Respondent No. 1 a high officer of the <ORG> and was a lessee of the <ORG>, a fact which he never concealed and if he was able to get a good customer for purchasing his land or acquiring the same, there was no harm In writing to the concerned authority to fix the proper valuation and take the land. There, was no question of any concealment or malpractice committed by respondent No. 1.

Apart from this, the contention of the appellant that the fact that the land being Khasmahal land belonging to the <ORG> was deliberately suppressed by the respondents is completely falsified by the circumstances discussed hereinafter:

The land in question was situated in a Cantonment area and it is not disputed that all lands in the Cantonment area were Khasmahal Lands belonging to the Government.

<ORG> in this connection has observed as follows:

"Government authorities admit that the land in question was known to be Khasmahal land from the very inception. This must lead to an inference that the authorities knew that the interest of the opposite party No. 1 in the land was that of a lessee and <ORG> was the proprietor".

<ORG> has further observed that a number of witnesses who were examined by the police had stated that it was common Knowledge that all khasmahal lands in the Cantonment area in Cuttack were Government lands Relying on the statement of Mr. <NAME>, Collector, Cuttack, <ORG> observed as follows:-

"<NAME> who has admittedly played an important role in the land acquisition proceeding has said that it is a matter of common knowledge that all khasmahal lands in Cantonment area at Cuttack are <ORG> lands. He has further categorically stated that <NAME> did not put undue pressure of any kind".

Furthermore, it would appear that Mr. <NAME>, Land Acquisition officer submitted a report about the land in question on 15th February, 1971 in which he had clearly mentioned that the land in question was <ORG> land and that respondent No. 1 was a Pattidar in respect of the land as shown in the record. Thus, one of the important premises on the basis of which the charge was sought to be framed has rightly been found by <ORG> not to exist at all. The records of the <ORG> showed the nature of the land. Respondent No. 1 at no time represented to the <ORG> authorities or the <ORG> that the land was his private one and the records of the <ORG> clearly went to show that the land was a <ORG> land. In these circumstances, therefore, it cannot be said that respondent No. 1 acted illegally in agreeing to the land being acquired by the <ORG>.

Another important circumstance relied on by the appellant was the great rapidity with which the land acquisition proceedings started and ended clearly shows that the respondents had joined hands to get the lands acquired and the compensation paid to respondent No. 1. In this connection, reliance was placed on the fact that the copies of the records of rights were prepared on 30th March, 1972 in which the land was no doubt shown as having been owned by the <ORG>. <NAME> report was also prepared on the same date. Respondent No. 1 presented his copy of the deed of transfer also on the same date and respondent No. 2 made the award for Rs. 4,18,642.55 also on the same date. The entire amount was disbursed also on the same date and possession also was handed over on the same date. Prima facie, it would appear that the Officer acted in great hurry perhaps at the instance of respondent No. 1. These circumstances are clearly explainable and cannot be said to exclude every reasonable hypothesis bu the guilt of respondent No. 1. Admittedly, the <ORG> authorities were in a great hurry to get the land acquired and take possession of the same. As respondent No. 1 was a high officer of the <ORG> cadre there may have been a natural anxiety on the part of the small officers posted in the district of Cuttack to oblige respondent No. 1 by completing the proceedings as early as possible and meeting the needs of the <ORG>.

It would, however, appear that once notices under section 9(1) and 10(1) of the Land Acquisition Act were issued and the objection filed by the appellant was withdrawn, because there was no one else in the field, there was no impediment in the way of acquiring the land and taking possession from respondent No. 1. In fact, it would appear as pointed out by <ORG> that as far back as 22nd February 1972 the Land Acquisition officer who was a person other than the second respondent had sent a letter to the Government with the counter signature of the Collector for sanctioning the estimate of acquisition of 2 acres of land belonging to respondent No. 1. Later, however, the area of the land was reduced from 2 acres to 1.764 acres and revised estimates as desired by the <ORG> department were sent on 7-3-1972. This estimate amounted to Rs. 4,18,642 55 and was sent through the <ORG>'s letter,on 8-3-1972. <ORG> by their letter dated 11-3-1972 sanctioned the aforesaid estimate. There after, the Government indicated to the Collector that an award might be passed for acquiring 1.764 acres of land. These facts apart from negativing the allegations of criminal conduct against the respondents demonstrably prove the untruth of the circumstance relied upon in the charge-sheet, namely, that unless the respondent No. 1 and 2 acted in concert and conspiracy with each other, respondent No. 1 could not have known the exact figure of the compensation to be awarded to him. In this connection, reliance was placed on a letter written by respondent No. 1 to the <ORG> officer, <NAME> on 15th March, 1972 where he had mentioned that as <NAME> of the <ORG> he would be getting a compensation of Rs. 4,18,642.55 which is to be paid to him on the 10th March, 1972 and it was argued that unless the two respondents were in league with each other how could respondent No. 1 get these details. We are, however, unable to agree with this contention.

We have already mentioned that a fresh estimate for 1.764 acres was prepared and the total compensation was Rs. 4,18,642.55 as only the Raiyyati or the lessee's interest was proposed to be acquired and this letter was sent to the <ORG> for sanction and the estimate was sanctioned on 11-3-1972. It was contended that no notice was given to the <ORG> department, so that the <ORG> could claim compensation of the proprietary interest. It is obvious that what has been acquired in the present case is merely the Raiyyati or the lessee's interest and as the proprietary interest vests in the <ORG> itself, there is no question of either acquiring or claiming compensation for the interest of the <ORG>. In the case of <CITATION> .(1) this Court observed as follows:-

"If the <ORG> has itself an interest in the land, it has only to acquire the other interests outstanding therein, so that it might be in a position to pass it on absolutely for public user..................... When <ORG> possesses an interest in land which is the subject of acquisition under the Act, that interest is itself outside such acquisition, because there can be no question of <ORG> acquiring what is its own. An investigation into the nature and value of that interest will no doubt be necessary for determining the compensation payable for the interest outstanding in the claimants, but that would not make it the subject of acquisition".

To the same effect is a later decision of this Court in the case of <CITATION> .(1) where this Court observed as follows:-

"Mr. <NAME>, the learned counsel for the State of Mysore, contends that the Land Acquisition officer had not assessed the compensation payable for the rights of the respondents in the land acquired .. .......We have gone through the Award made by the Land Acquisition officer. The Land Acquisition officer appears to have valued the rights of the respondents in the lands acquired. Whether the valuation made by him is correct or not cannot be gone into these proceedings."

As the appellant was naturally interested in finalising the deal as quickly as possible, there could be no difficulty in finding out the esti-

(1) AIR 1955 S.C. 298.

(2) AIR 1972 S.C. 2224.

mates which had been sanctioned a week before respondent No. 1 wrote the letter to <ORG>. This fact proves the bona-fide rather than any wrongful conduct on the part of respondent No. 1 which may lead to an adverse inference being drawn against him.

Finally, it was argued that what was acquired by the <ORG> was merely the lessee's interest, but the respondent No. 1 appears to have got compensation as the owner. This is factually incorrect. We have already referred to the circumstances which clearly show that the <ORG> was fully aware that it was only the lessee's interest which was being acquired and even the fresh estimate for Rs. 4,18,642. 55, which was sent to the <ORG> was shown as representing the Raiyyati interest. Mr. <NAME> appearing for the respondents fairly conceded that having regard to the nature, character and situation of the land, it could not be said that the amount of compensation awarded did not represent the market value of the lessee's interest of the land.

On the other hand, in the counter-affidavit at page 87 of the paper book, it has been alleged that 16 sale-deeds executed during the year 1970 and sale-deeds executed during the year 1971 pertaining to the village in question were acquired at the rates varying from Rs. 42,165 to 750,000. <ORG> has also pointed out that the records before the Trial Judge show that the Collector Vijayasekharan had valued the land at the rate of Rs. 1.70 lakhs per acre as far back 1: as 3-2-1970 and if two years later the valuation was raised to Rs. 2 lakhs it cannot be said that the land was in any way over-valued.

Lastly, there does not appear to be any legal evidence to show any; meeting of mind between respondents No. 1 and 2 at any time. Although the Collector at the time of the acquisition was a distant relation of respondent No. 1 he had himself slashed down the rate of compensation recommended by the <ORG> officer from Rs. 2,10,000 to Rs. 2,00,000 and it was never suggested by the prosecution that the Collector was in any way a party to the aforesaid conspiracy.

For these reasons, therefore, we find ourselves in complete agreement with the view taken by <ORG> that there was no sufficient ground for trying the accused in the instant case. Moreover, this Court could be most reluctant to interfere with concurrent findings of the two courts in the absence of any special circumstances.

For the reasons given above, the judgement of <ORG> is affirmed and the appeal is dismissed.

M.R. Appeal dismissed.


PETITIONER: STATE OF MYSORE Vs. RESPONDENT: <NAME> & ANR. ETC. DATE OF JUDGMENT: 24/11/1970 BENCH: <NAME>, G.K. BENCH: <NAME>, G.K. SHAH, J.C. HEGDE, K.S. GROVER, A.N. RAY, A.N. CITATION: 1971 AIR 191 1971 SCR (2) 831 1970 SCC (3) 545 CITATOR INFO : RF 1981 SC 53 (23) E&D 1982 SC1107 (28) ACT: Constitution of India, 1950, Art. 311- Compulsory transfer from Government Service to <ORG>-If operates as removal from service. HEADNOTE: The <ORG> of Agricultural Sciences Act , 1963, was passed by <ORG>, to establish a <ORG> for the development of agricultural and allied sciences in the State. Under s. 7(4) of the Act, the control and management of such research institutions of the department of agriculture as <ORG> might by order specify, were to be transferred to the <ORG> as and from the date specified; and, under sub-s. (5), every person employed in such an institution, were, as from the specified date, to become an employee of the <ORG> on such terms and conditions as might be determined by <ORG> in consultation with <ORG> of the <ORG>. The respondent was holding a civil post under <ORG>, having been appointed as a chemical assistant in <ORG>, Mandya, in the department of agriculture of the State. In 1965, the control and management of the Institute was transferred to the <ORG>, by a notification under the Act. On the question whether there was a removal-of the respondent from a civil post in contravention of Art. 311 , HELD : Whether the prospects of the respondent were or were not prejudicially affected is irrelevant. For better or for worse, the notification resulted in the extinction of his status as a civil servant, and hence, his compulsory transfer to the <ORG> was void. [834 A, F] <NAME> v. Union of India, I.L.R. 13 Punj. 781, distinguished. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1868 to 1882 of 1969.

Appeals from the judgment and order dated July 9, 10, 1968 of <ORG> in Writ Petitions Nos. 1776, 2108, 2109, 2111, 2112, 2272, 2273, 2275, 2385, 2386, 2390, 2395 and 2396 of 1966 and 728 and 990 of 1967.

<NAME>, Solicitor-General, <NAME> and <NAME>, for the appellant (in all the appeals). <NAME> and <NAME>, for respondent No. 1 (in C.As. Nos. 1868 to 1871 and 1874 to 1881 of 1969).

The Judgment of the Court was delivered by- Mitter, J. The State of Mysore has come up in appeal from a common judgment of <ORG> at Bangalore disposing of a number of writ petitions and holding void the compulsory transfer of the respondents herein to <ORG> under the provisions of the University of Agricultural Sciences Act , 1963.

As the same question arise Civil all these appeals it will be sufficient to state the facts in Appeal No. 1$68 of 1969 in which one <NAME> is the respondent. The said respondent was appointed on January 7, 1959 as an agricul- tural demonstrator in <ORG>. His appointment was as a local candidate' which under <ORG> Rules means a person appointed not in accordance with the rules of recruitment. His services were however regularised when he was selected by <ORG> for appointment to that post on August 27, 1959. By an order dated April 4, 1964 he was transferred and posted as a Chemical Assistant of <ORG>, in the department of agriculture. When he was thus employed, a law made by <ORG> called the <ORG> of Agricultural Sciences Act ., 1963 (hereinafter referred to as the Act') came into force on April 24, 1964. Before <ORG> the respondents to these appeals challenged the vires of s. 7(5) of the Act and a notification issued thereunder. The preamble to the Act shows that it was an Act to estab- lish and incorporate a <ORG> for the development of agriculture, animal husbandry and allied sciences in the State of Mysore. Under S. 3(2) the <ORG> was to be a body corporate having perpetual succession and a common seal. The powers given under s. 6 of the Act enabled it inter alia to create administrative, ministerial and other posts and to appoint persons to such posts. Under s. 7(1) subject to the conditions therein mentioned several agricultural and veterinary colleges were disaffiliated from the Karnatak <ORG> or the <ORG> of Mysore and were to be maintained by the new <ORG> as constituent colleges. The control and management of these colleges were to stand transferred to the Agricultural <ORG> and all its properties and assets and liabilities and obligations of <ORG> in relation thereto were to stand transferred to, vest in, or devolve upon the said <ORG>. Under sub-s. (4) of s. 7 the control and management of such research and educational institutions of <ORG>, <ORG> and <ORG> of <ORG> were, as and from such date as <ORG> might by order specify, to be transferred to the <ORG> and thereupon all the properties and assets and liabilities and obligations of <ORG> in relation to such institutions were to stand transferred to, vest in, or devolve upon the <ORG>. omitting the proviso which is not relevant for our purpose, sub-s. (5) provided "Every person employed in any of the colleges specified in sub-section (1) or in any of the institutions referred to in sub-section (4) immediate before the appointed day or the date specified in the order under subsection (4), as the case may be, shall, as from the appointed day or the specified date, become an employee of the <ORG> on such terms and conditions as may be determined by <ORG> in consultation with the <ORG> :" The <ORG> has been defined in section 2 clause (3) as the <ORG> of Regents of the <ORG>.

By notification dated September 29, 1965 the control and management of a large number of research and educational institutions were transferred to the University with effect from October 1, 1965. <ORG> where the respondent was working was one such institution. Not liking the change which his future prospects were likely to undergo as a result of the notification, the respondent presented a writ petition, seeking a declaration that sub-ss. (4) and (5) of s. 7 of the Act Were invalid And for a further declaration that he continued to be a civil servant under <ORG>. To put in brief the argument on this head was that he had been removed from a civil post under the <ORG> in contravention of the provisions of Art. 311. A further argument was put up that the respondent had been subjected to hostile discrimination inasmuch as persons who had been appointed in the same manner as himself and later in point of time than himself had been retained in the service of the <ORG> thereby infringing articles 14 and 16 of the Constitution.

It is not necessary to deal with the second point as the appellant, in our opinion, must fail on the first. There can be no dispute-as indeed the learned Solicitor-General was constrained to admit-that the respondent and others who had filed writ petitions in <ORG> challenging the notification ceased to hold the civil posts which they held under the State of Mysore at the time when the notification was issued if it was to have full force and effect. Whether the prospects of the respondent were 11-L694Sup.CI/71 or were not to be prejudicially affected if he was to become an employee of the <ORG> is not in point. However the learned Solicitor-General drew our attention to paragraph 17 of the counter affidavit to the writ petition filed in <ORG> where it was stated that the terms and conditions of transfer as agreed to by the <ORG> and the <ORG> provided inter alia for the following (1)Every employee of the, <ORG> on his transfer to the <ORG> shall enjoy the same pay scale. (2) He was to be eligible for pensionary benefits in the same manner as he had while he was serving the <ORG>. (3) His claims for higher pay scales or higher positions under the <ORG> shall be deemed to be on a preferential basis in comparison with others, provided the qualifications and experience were equal; and (4)Every employees of the <ORG> on his transfer to the <ORG> was to be protected to the extent that the terms and conditions of his service under the <ORG> would not be altered to his detriment.

We are not here concerned with the question as to whether for all practical purposes the respondent was not to be a loser as a result of the transfer. Evidently the respondent held the view that as a civil servant of the <ORG> of Mysore the prospects of promotion to higher posts with better scales of pay were greater in the service of the <ORG> with its manifold activities in various departments. For better or for worse, the notification resulted in extinction of his status as a civil servant.

The learned Solicitor-General sought to rely on a judgment of <ORG> in <CITATION> (1) a case which was considered by <ORG>, in aid of his contention that the transfer of the kind effected in this case had been held to be valid by <ORG>. <ORG> at Bangalore went into the question rather elaborately and noted that there were many differences between the provisions of the <ORG> (Kharagpur) Act 1956, the Act impugned in <ORG> and the Agricultural University Act of 1963. Tin the Punjab case the petitioner had initially been appointed by the Director, <ORG> Kharagpur as a peon. As a result of the Act of 1956 the Institution declared to be one of national importance, was constituted under the Act providing inter alia that the employees who were working in the Institute be-fore were to hold office or service thereafter upon the (1) I.L.R. 13 Punj. 781.

<NAME>

same terms and conditions and with the same rights and Privileges as to pension, leave, gratuity, provident fund and other matters as they would have held the same on the date of commencement of. the Act as if the Act had not been passed. In the case before us the Act provides by sub-s. (5) of S. 7 that the terms and conditions of the Government employees immediately before the appointed day or the date specified in the notification were to be such as might be determined by the State Government in consultation with the Board. The learned Judge of <ORG> on the facts of that case found it unnecessary to examine the argument whether, the assent given by the President to the Indian Institute of Technology Bill had the effect of terminating the status of the petitioners as Government servants by the President as also the argument raised on their behalf that their lien had been terminated under the Fundamental Rules without their consent. The Punjab decision can-not therefore apply to the case as presented before us.

In the result the appeals fail and are dismissed with costs.. There will be one set of hearing fee.

V.P.S. Appeals dismissed.


<ORG>, J.

1. In this case one <NAME> owed a sum, it is said, to <NAME>. <NAME> died, leaving a widow <NAME> and no son. <NAME>, therefore, was <NAME>'s heir, he not having, so far as appears, any brother. The creditor <NAME>, desiring to enforce payment of the debt due by the deceased, ought obviously to have sued <NAME>, but instead of that he brought a suit against <NAME>'s mother <NAME>, and in execution of ex-parte decree against her as representative of <NAME> sold, or affected to sell, the house in which she dwelt, which was, in fact part of the estate then vested in <NAME>. An attempt was made to get the sale set aside by another <NAME>, who resided with <NAME>, but this failed. It does not appear that <NAME> acted as agent for <NAME>, and we agree with the District Judge that she could not be indentified with <NAME> in his opposition to the attachment so as to be entitled to have limitation computed for her suit from the time of the decision against <NAME>, An unauthorized act cannot afterwards be ratified so as to prejudice a third person who could not be legally affected in the first in- stance owing to the want of authority (Indian Contract Act , IX of 1872, Section 200 ). "

2. It has, however, been many times ruled that the person who after a summary decision against him in a complaint arising on his obstruction is limited to one year, as the time within which he must bring a suit to establish his right, yet has twelve years if "Without any obstruction to the attachment or sale he first claims in a suit as having been wrongfully dispossessed of the property sold in execution. This is the position now taken by the plaintiff <NAME>. He was adopted by <NAME> between the decree and the sale of the house in question. His right dates back to the death of her husband, and there was not any intermediate obstruction to the attachment or sale on <NAME>'s part by which <NAME> could be bound. Had <NAME> acted for her in trying to get the sale set aside, the present suit would have been in time under the Law of Limitation, but she merely remained quiescent. It is urged, however, that this quiescence was in itself enough to bind <NAME> and binding her bound her adopted son also, so that now the latter is estopped from disputing the regularity of the proceedings leading to the sale and the validity of the title acquired by the defendant <NAME> as purchaser at the sale in execution. The case of <ORG> H.C. Rep. A.C.J. 37 is referred to in support of this contention; and if <NAME> had wilfully put forward <NAME> as the representative of <NAME> so as to deceive and mislead <NAME>, then, no doubt, she might be held bound by the decree obtained by the latter against <NAME>. But the District Judge finds that <NAME> was not ignorant of <NAME>'s position; there is nothing to indicate that she took any step to deceive him; and her mere quiescence, while he wilfully sued the wrong person, could not deprive her of her legal rights-see <NAME> v. <NAME> Second Appeal No. 621 of 1883, decided 17th June 1834. Much less could it deprive her adopted son <NAME> of his rights <NAME> & Buhler 1176 (3rd ed.), He could not be bound by a suit and sale, to which he was not a party, either in person or by representative-Fatu v. <NAME> Printed Judgments for 1884, p. 182. The case of <CITATION> . 4 Calc. 342 rest on a supposed deceitful withholding of a will and a suit against the wrong person induced by the deceit. The case of <NAME> v. Venktapa I.L.R. 5 Bom. 19 shows that a suit, however just in itself, brought against the wrong party, "cannot be sustained against the right one, though it shows also that a mortgage erroneously sued on against A is not so extinguished by the decree and consequent execution that it will not avail against B, the person really liable, but not represented in the previous suit. In the present case there was not a mortgage giving to <NAME> an interest in <NAME>'s property; there was but a debt due to him; and when the suit against <NAME> is pronounced ineffectual as against <NAME>, there is nothing left to fall back upon except the personal obligation so far as this may have descended to <NAME> and may still be an available cause of action to the creditor.

3. <NAME>, however, it is urged, was bound to come forward when, the property was attached and sold: on <NAME>'s decree. But the present Code of Civil Procedure, in giving to persons an opportunity to come forward and set up claims to property proposed to be sold in execution, does not say, nor do the rules made under Section 287 of the Code say, that by not coming forward a true owner of the property submits to an extinction of his legal rights. It still behaves an intending purchaser as when the case of <NAME> v. <NAME> 8 Bom. H.C. Rep. A.C.J. p. 37 was decided, to see that the person sued as a representative was really the representative of the debtor deceased, since by sale of the derived interest which is no interest) of A, the real interest of B, the true representative, cannot in general be affected. In the case we have just referred to, <NAME> (Equity Jurisprudence) is quoted (page 43) Sec Sugd. V. & P., Ch. XXIII. Section 2 Wh. & T.L.C. 25, 27 (3rd ed.) to the effect that one who knowing his own title stands by and encourages a purchase of property as another's, will not be allowed to dispute the validity of the sale; but this implies a wilful mis-leading of the purchaser by some breach of duty on the owner's part. The principle broadly stated by <NAME> must, in practice, be taken with the qualifications stated in <NAME> v. Watts L.R. 25 Ch. D.571 and in Wilmot v. Barber L.R. 15 Ch. D. 96, 105. From these it appears that "a man is not to be deprived of his legal rights, unless he has acted in such a way as would make it fraudulent for him to set up these rights." There must be ignorance on the one side deluded by a misrepresentation in act or word on the other-Rajcoomar V. McQueen L.R. 15 Ch. D. 96, 105. Now in the present case there does not appear to have been anything more than quiescence on the part of <NAME>, unless <NAME>'s application can be attributed to her. If it could be so attributed, then the alleged quiescence and its consequences would fail; but, excluding this, there was no deceit practised; no one was asked to buy by <NAME>; she did not represent that she had no interest in the property. She merely left <NAME> to sell <ORG>'s so called representative interest for what it might be worth, and did not volunteer any advice or assistance to intending purchasers, who could themselves have ascertained the truth by reasonable inquiry <NAME> v. <NAME> 3 H.L. 739; <NAME> v. <NAME>, 8 H.L. 481. Supposing <NAME> was aware of what was going on, she was not, as we have seen, bound to take any step Second Appeal 621 of 1882, decided on 17th June 1884; she might lawfully leave the persons concerned to their own counsels and devices. The illustration to Section 115 of the Indian Evidence Act sets forth that one is bound who intentionally and falsely leads a purchaser to suppose he is taking a perfect title. There is an obligation to truth in speech and act, but no obligation to speak or act where no confidence is given or accepted, merely for the purpose of guarding or furthering the interests of strangers proceeding wholly in invitum, and with an omission to inquire, which is equivalent to knowledge See per Lord <NAME> in <ORG> v. <ORG> & Ir Ap. At P.157.

4. The sale must therefore, be pronounced void as against <NAME>, and the decrees of the Courts below being reversed, the house is awarded to him as sought in his plaint, with costs throughout.