JUDGMENT Leach, <NAME>

1. The case for the appellants is completely devoid of merit, but questions of law have been raised and it is necessary to consider them. The appellants and respondent 4 are the managers of the communal lands of the village of Natarajapuram (also known by the name of Ethandarpatti) in the Trichinopoly Taluq. They sued in <ORG> of Trichinopoly for a declaration that the deoree obtained in Order Section No. 82 of 1929 was not binding upon them or upon the other ryots of this village. In that suit defendants 1 to 4, as the representatives of the village of Arasankudi, sued four ryots of the village of Natarajapuram, as the representatives of that village, to recover a sum of Rs. 1667-4-0 which they claimed was due to the villagers of Arasankudi by the villagers of Natarajapuram in respect of the construction of a road connecting the two villages with the main road. Both the villages had asked <ORG> authorities to construct the road and promised that they would contribute one-third of the cost, if <ORG> would bear the rest. It was afterwards arranged that the two villages should contribute a total sum of Rs. 4000 which was to be borne by them equally. At a later stage, it was agreed between the villagers of Arasankudi and the villagers of Natarajapuram that the Arasankudi villagers should pay Rs. 2250 of the Rs. 4000 and the villagers of Natarajapuram Rs. 1750. The villagers of Arasankudi paid the full amount and the villagers of Natarajapuram reimbursed them to the extent of Rs. 500 but they failed to pay the balance, and in consequence defendants 1 to 4, suing on behalf of all the villagers of Arasankudi, instituted the suit to recover the balance.

2. The District <NAME> took the plaint on his file on 20th February 1929 and numbered the suit as No. 82 of 1929. "With the plaint were filed two applications, one for an order permitting the plaintiffs to sue on behalf of the villagers of <NAME> and the other for an order allowing them to sue the defendants as the representatives of the village of Natarajapuram. Having numbered the plaint, the District <NAME> directed that notice should issue to the defendants and that a general notification should be published in <ORG>. The defendants were served, and the notification was duly published. After this had been done, namely, on 19th April 1929, the District <NAME> granted leave to the plaintiffs, as representing <NAME>, to sue the defendants as representing Natarajapuram. In his order he pointed out that there was no opposition to the application. He also directed that as defendant 3 was absent the case should proceed against him exparte. Subsequently, defendant 3 filed an application for an order setting aside the exparte order which was passed against him on 19th April 1929 and asked for permission to file a written statement. This application was granted. All the defendants filed written statements. On 2nd April 1981 the plaintiffs and defendants 1, 2 and 4, filed in Court a statement agreeing that a decree for Rs. 1250 and costs should be passed against the communal properties of the village of Nataraja-puram with full liberty to the plaintiffs to proceed in execution against these properties. Defendant 3 did not join in this application. In conjunction with the plaintiffs, he filed a memorandum stating that he was not willing to continue on the record as one of the representatives of the village of Nataraja-puram and that the plaintiffs consented to the suit being proceeded with against defendants 1, 2 and 4 as the representa-tives of Natarajapuram. In these circumstances he asked that his name be removed from the suit. On 7th April the District <NAME> passed a decree in accordance with the terms agreed upon by the parties and set out in these two statements. The suit out of which this appeal arises was filed by the appellants on 4th January 1933 in accordance with the provisions of Order 21, Rule 68, Civil P.C. The decree-holders in Order Section No. 82 of 1929 had attached the communal lands of Natarajapuram in execution of their decree and the appellants' objection to the attachment had been overruled. The District <NAME> decreed the suit On the following grounds, (1) In the earlier suit the requirements of Order 1, Rule 8 had not been complied with and (2) as defendant 3 had disappeared from that suit the Court had no power to pass a decree against the three remaining defendants as the representatives of Natarajapuram without an order expressly directing the suit to proceed against them. On appeal the decree of the District <NAME> was confirmed. The defendants then appealed to this Court. <NAME> held that the decree which had been passed in the former suit was binding upon the plaintiffs and consequently dismissed their suit with costs. This appeal is from the judgment of the learned Judge under Clause 15, Letters Patent.

3. As before <NAME>, the appellants have raised four contentions. The first two are the contentions which the District Munsif and the Subordinate Judge accepted. They also say that the <ORG> has no power to pass an order allowing persons to be sued in a representative capacity when the claim is upon a mere debt. Further they say that the decree in the former suit is not binding upon them because the defendants had no power to enter into a compromise. Order 1, Rule 8 reads as follows:

(1) Where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the <ORG>, sue or be sued or may defend, in such suit, on behalf of or for the benefit of all persons so interested. But the <ORG> shall in such case give, at the plaintiff's expense, notice of the institution of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the <ORG> in each case may direct.

(2) Any person on whose behalf or for whose benefit a suit is instituted or defended under Sub-rule (1) may apply to the <ORG> to be made a party to such suit.

4. Mr. <NAME> on behalf of the appellants says that when the plaint is first filed it is incumbent upon the <ORG> to pass an order permitting the suit to be brought in a representative capacity or the defendants to be sued as representatives, if the allegations in the plaint justify the order. After permission has been given, it is incumbent upon the <ORG> to issue public notice that the suit has been instituted so that other persons may apply to be added as defendants. Here the permission to the plaintiffs in the former suit to sue as the representatives of the Arasankudi village the defendants named therein as the representatives of Natarajapuram village was granted after the publication in the District Gazette of the notice that the suit had been filed. Consequently, Mr. <NAME> argues that as the rule contemplates permission before publication of the notice it was necessary for the District Munsif to issue a fresh notice and his failure to do so vitiated the proceedings. In this connexion he has pointed to the following passage in the judgment of <ORG> in <CITATION> ('33) 20 A.I.R. 1933 P.C. 183 at p. 666:

On such permission being given it becomes the imperative duty of the <ORG> to direct notice to be given to the absent parties in such of the ways prescribed as the <ORG> in each case may require; while liberty is reserved to any represented person to, apply to be made a party to the suit.

5. Emphasis is laid on the words "imperative duty". Divorced from its context this passage does give support to the appellants, but when the judgment is read as a whole, it is quite clear that <ORG> did not intend to lay down a rule that non-compliance with the strict wording of the rule was fatal to the case. <CITATION> ('33) 20 A.I.R. 1933 P.C. 183 the question was whether the decision in a former suit operated as resjudicata when no permission had been sought or granted under Order 1, Rule 8. <ORG> held that in a representative suit the decision in a former suit does not operate as resjudicata by reason of Section 11, Civil P.C, Expln. 6, unless the former suit was instituted in compliance with Order 1, Rule 8 of the present Code. By compliance was meant the institution of the suit with the permission of the <ORG> sifter the notice as prescribed by Order 1, Rule 8 had been given. But Lord <NAME> in delivering the judgment of the <ORG> said that their Lordships would not exclude the possibility of a decree being within the benefit of Expln. 6 of Section 11, where the litigation having been bona fide the omission to comply with the conditions of the rule had been inadvertent and no injury from the omission had been sustained by the plaintiff in the second suit. It was, however, imperative to have it recognised that the burden upon a defendant seeking a ruling to that effect was heavy indeed. No encouragement should, they thought, be offered to litigants if they would obtain the full benefit of Order 1, Rule 8 to be careless in securing full compliance with the conditions of the rule, both in the letter and in the spirit. The object of Order 1, Rule 8 is to permit a person who has an interest in the subject-matter of the suit to apply to the <ORG> to be made a defendant. He may not be convinced that the defendants named in the plaint will defend the suit properly as the representatives of all persons concerned. In this case the District Munsif, strictly speaking, should have passed orders on the two applications filed by the plaintiffs in the former suit when he admitted their plaint and left the publication of the notice of the suit to a later stage but the fact that he gave to the plaintiffs as the representatives of the Arasankudi permission to sue the defendants as the representatives of Natarajapuram after he had notified by public advertisement the institution of the suit prejudiced no one. Any person residing in Natarajapuram could have applied to be made a defendant, but no one chose to do so. The villagers of Natarajapuram had notice of the institution of the suit and they were prepared to allow it to proceed with the defendants chosen by the plaintiffs. Consequently, we hold that there was sufficient compliance with Order 1, Rule 8.

6. We consider that there is no greater force in the appellants' contention that the <ORG> was not entitled to pass a decree against defendants 1, 2 and 4, because it had allowed defendant 3 to drop out. Here Mr. <NAME> has relied on the judgment of <NAME> in <CITATION> ('31) 18 A.I.R. 1931 Mad. 452 and <CITATION> ('34) 21 A.I.R. 1934 Mad. 202. In the former of these twp cases, <NAME> held that where sanction is given by a <ORG> to certain persons eo nomine to institute or defend a suit and one of them dies, the right does not survive and therefore his heirs cannot come on the record unless the order granting the sanction can be construed as conferring the right to do so. He considered that the proper procedure was for the remaining persons to apply to the <ORG> for directions and it was for the <ORG> to decide whether it would permit them to continue to prosecute or defend the suit or whether it would insist upon the original number, in which case it should give directions in this respect. The judgment in <CITATION> ('34) 21 A.I.R. 1934 Mad. 202 was to the same effect. <NAME> considered these two decisions and, in his opinion, it was not incumbent upon the remaining parties to apply to the <ORG> for directions. The suit could lawfully proceed without them. It is not necessary for the purpose of this, appeal to decide whether the <ORG>'s directions are necessary or not, because it is quite clear that all parties, including defendant 3, were willing that there should be a decree against defendants 1, 2 and 4 in their representative capacity. In passing the decree which it did the <ORG> in fact permitted the suit to proceed against the remaining defendants.

7. <NAME> considered that the appellants ought not to be allowed to raise the plea that there cannot be a representative suit in respect of a debt and we agree with him. Permission had been given to the plaintiffs in the former suit to sue in a representative capacity and it may be added that the plea was not raised in the plaint. It may also be pointed out that the suit was a claim to enforce payment of a debt due by the whole village in connection with the construction of a road for the benefit of all the villagers and it is difficult in such circumstances to see why the defendants could not be sued in a representative capacity. Otherwise it would mean the joining of every inhabitant of the village. The last contention, namely, that the defendants in the former suit had no power to compromise can be disposed of in a few words. There are two Bench decisions of this Court which say that persons conducting a suit on behalf of themselves and others with leave of the Court can enter into a compromise so as to bind those whom they represent and the same principle must apply when the defendants are sued in a representative capacity. The first case is <CITATION> ('13) 24 M.L.J. 192 and the second the unreported case of <NAME> v. Anthony Nadar C.M.A. No. 266 of 1930. The appeal will be dismissed with costs.


CASE NO.: Special Leave Petition (civil) 10653 of 1998 Special Leave Petition (civil) 12013 of 1998 Special Leave Petition (civil) 16740 of 1998 PETITIONER: STATE OF BIHAR & ORS. Vs. RESPONDENT: <NAME> & ANR. DATE OF JUDGMENT: 27/04/2000 BENCH: <NAME>, & <NAME>. JUDGMENT:

SETHI, J.

L...I...T.......T.......T.......T.......T.......T.......T..J The respondents <NAME> and <NAME> and one <NAME> were directly recruited as Sub-Inspectors of Police on 2.1.1966. <NAME> was promoted as Inspector of Police on officiating basis on 16.7.1971 with a clear stipulation that he will not get seniority in the rank of Inspector till selected by the IG's Board. Consequently he actually joined on 22.7.1971. <NAME> was promoted as Inspector on 8.7.1972 in terms of Rule 616(c) of the Bihar Police Manual Rules (hereinafter referred to as "the Rules") as he had been awarded gallantry award. On 2.7.1978 <NAME> was promoted as Inspector after selection under Rule 649 and was confirmed as such on 1.4.1982. The aforesaid respondent filed Writ petition No.6873 of 1990 in <ORG> of Patna praying for direction to the respondents therein to consider his case for promotion to the post of Dy.SP treating his date of promotion to the post of Inspector of Police as 27.7.1971, the date when he joined as Inspector of Police consequent upon his initial promotion on officiating basis. The aforesaid writ petition was disposed of by <ORG> on 30th November, 1990 directing <NAME> to file representation and the petitioner-State to dispose of the same within three months. On 14.5.1991 the Director General of Police directed seniority of the aforesaid respondent in the rank of Inspector to be reckoned with effect from 27.7.1971. However, on 13.4.1993 the DGP modified the aforesaid order and directed confirmation of <NAME> in the rank of Inspector with effect from 2.7.1978 when he was substantively promoted under Rule 649 of the Rules and placed him at Sl.No.86 Ka in the seniority list of Inspectors. Feeling aggrieved, the aforesaid respondent filed Writ Petition No.4108 of 1991 in <ORG> which was allowed on 8.4.1994 with a direction of reckoning his seniority as Inspector with effect from 27.7.1971 and grant of all consequential benefits to him. As the directions were not complied with, contempt petition being MGC No.1360 of 1994 was filed in <ORG> and according to the petitioners the order of <ORG> passed in Writ Petition No.4108/91 was implemented allegedly under the threat of contempt.

<NAME> who was promoted as Inspector out of turn on the basis of gallantry award in terms of Rule 616(c) of the Rules had been promoted as Dy.SP with effect from 25th October, 1975. Alleging that the aforesaid <NAME> was junior to him, the respondent <NAME> filed writ petition No.697 of 1995 claiming promotion with effect from the date when <NAME> was promoted as Dy.SP. The aforesaid writ petition was allowed on 26th July, 1995 directing promotion of <NAME> as Dy.SP with effect from 25th October, 1975. The Letters Patent Appeal filed against the aforesaid judgment was dismissed by a Division Bench of <ORG> on 22nd March, 1996 vide the judgment impugned in the SLP 12013/98.

There being delay of 679 days in filing the SLP, the appellants have also filed Application being IA No.1/98 seeking condonation of delay in filing the SLP. It is submitted in the application that the order of <ORG> of <ORG> could not be challenged earlier allegedly due to the fear of contempt and various coercive orders passed by <ORG> against the <ORG> and its officials. It is contended that as consequent upon the judgment of <ORG> in <NAME> case, a number of writ petitions have been filed in <ORG> of Patna for the grant of similar benefits, the <ORG> had no option left except to approach this Court. It is contended that the judgment impugned has been passed in violation of the provisions of law and the rules applicable and it has become a havoc in the <ORG> and <ORG> is facing great trouble in compliance of such type of directions for conferment of uncalled for benefits. It is submitted that if the impugned judgment is not rectified or set aside, the interests of more than 250 officers would be adversely affected. By promoting <NAME> a number of senior officers are stated to have already superseded for no fault of theirs. If promotions are given in terms of the directions of <ORG>, the same is likely to upset the entire cadre of Dy.SP of Police as well as Inspectors of Police in the <ORG> of Bihar. If not stopped, the consequence would be uncalled for litigation with heavy financial burden upon the <ORG>.

<NAME> respondent in the SLP 10653 of 1998 filed a writ petition in <ORG> praying for issuance of directions to the appellants to assign him seniority in the rank of Inspector of Police over <NAME> and thereafter provide him with all consequential benefits. He claimed to have been appointed along with <NAME> as Sub Inspector of Police in January, 1966. His name was shown above the name of <NAME> in the cadre of Sub Inspectors. Both of them passed the <ORG> training together. He claimed that his case for substantive appointment of Sub Inspector was placed before <NAME> along with the cases of <NAME> and others. <ORG> which held its meetings on 17th and 18th August, 1978 is stated to have declared both the respondents as fit for officiating promotion on the higher post of Inspector of Police. On the basis of the recommendations made by the Board a Gazette Notification is stated to have been issued on 6th October, 1978 by which both the aforesaid respondents were promoted on officiating basis to the higher post of Inspector of Police. However, despite notification <NAME> could not join the post of Inspector till 3rd March, 1981. Both the aforesaid respondents were stated to have been confirmed with effect from 1.4.1982. In the seniority list published on 18th May, 1988, the said <NAME> was shown senior to <NAME> by being placed at Sl.No.224 and <NAME> at Sl.No.225. He then referred to the filing of the writ petition by respondent <NAME> to which he was not made a party. He claimed that after the promotion of <NAME> he could not be denied the relief claimed. Allowing the writ petition on 3rd July, 1997, the learned Single Judge of <ORG> directed the petitioners herein to treat the said respondent as senior to <NAME> as Inspector of Police and provide him with all consequential benefits including promotion to the next higher post, if he otherwise was found fit. It was, however, made clear that the judgment of the Court would not affect the interest of <NAME> in the matter of promotion to the post of Dy.SP and SP which was noticed to have been already granted to him. LPA filed against the judgment of the learned Single Judge was dismissed on the ground of unexplained delay of 174 days, vide the judgment impugned in this petition.

<NAME> and others who were intervenors in <ORG> filed an application with the submission that as they were likely to be adversely affected by the impugned judgment passed by the learned Single Judge and confirmed by the appellate Bench, their interests be protected and the court should ensure by giving the benefit to the writ petitioners that the interest of the intervenors would not be adversely affected. Their application was dismissed holding:

"However, those persons are neither party in the present <ORG> nor they were party in the writ applications referred to above. Even if they have bonafide grievance, the same cannot be appreciated and considered in this <ORG>."

They have also sought the condonation of delay mainly on the ground of not being aware of the judgment passed by <ORG> which ultimately and eventually adversely affected their interests.

We have heard the arguments of the learned counsel appearing for the parties and have perused the records.@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Appearing for the petitioners <NAME>, Senior Advocate has submitted that under the circumstances of the case and for the reasons detailed in the applications sufficient grounds have been made out for condoning the delay in filing the petitions. He has further submitted that the judgments impugned are contrary to law and totally in violation of the rules applicable in the case and if not set right, are likely to adversely affect a number of other officials who are admittedly senior than the respondents herein. According to the learned counsel 14 similar writ petitions and three contempt petitions are pending before <ORG> wherein all the petitioners have claimed similar relief as was given to <NAME>, on the ground of admittedly being senior to him. Besides 15 representations for similar reliefs are stated to be pending before the <ORG>. <NAME> is stated to have superseded 168 Inspectors by getting an order to give him seniority with effect from 27.7.1971. In the cadre of Dy.SP <NAME> is stated to have superseded 407 officers by virtue of the judgment of <ORG> in the second round claiming promotion as Dy.SP with effect from 25th October, 1975, when <NAME> was promoted. It is contended that <ORG> has committed an error of law by directing the conferment of benefits upon the respondent on the alleged ground of equality. No court can grant relief to a citizen by applying the concept of negative equality. Only because the <ORG> had committed a mistake by giving <NAME> seniority with effect from 27.7.1971 as Inspector and under the threat of contempt, promotion with effect from 25th October, 1975, the others who claimed to be similarly situated cannot force the <ORG> to commit the same mistake and upon denial approach <ORG> for issuance of appropriate directions.

<NAME>, Learned Senior Advocate appearing for the respondents has, however, submitted that as the <ORG> slept over its rights and felicitated the judgment in <NAME> case become final, they are now not entitled to seek the condonation of unexplained delay. It is further submitted that <NAME> and <NAME> have already been conferred the benefits of the judgment and consequently promoted. By setting aside the judgments at this belated stage would not only adversely affect their interests but subject the aforesaid respondents to humiliation of demotion besides suffering of the monetary loss. The learned senior counsel has even denied the claim of Mr.<NAME> regarding supersession of 168 Inspectors and 407 <ORG>.SPs. It is contended that in view of the settled law the present petitions are liable to be dismissed.

Mr.<NAME> and other advocates who appeared for the intervenors submitted that if the impugned judgments are not set aside, their clients along with others are likely to suffer for no fault of theirs. It is contended that in the absence of parties likely to be affected consequent upon the prayers made were necessary parties and in view of the fact that they have not been impleaded as party-respondents, the impugned judgments cannot adversely affect the interests of any senior officer.

Power to condone the delay in approaching the court has been conferred upon the courts to enable them to do substantial justice to parties by disposing of matters on merits. This Court in <CITATION> .[1987 (2) SCR 387] held that the expression 'sufficient cause' employed by the legislature in the Limitation Act is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice - that being the life purpose for the existence of the institution of courts. It was further observed that a liberal approach is adopted on principle as it is realised that:

"1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. 'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non- deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

After referring to the various judgments reported in <CITATION> [1975 (2) SCC 840], <CITATION> [AIR 1917 PC 156], <CITATION> [1969 (1) SCR 1006], <CITATION> [1979 (4) SCC 365], <CITATION> [1969 (2) SCC 770], <CITATION> [1981 Supp SCC 72], <CITATION> [1982 (3) SCC 366 O.p. <CITATION> [1984 (4) SCC 66], Collector, Land Acquisitionv. Katiji [1987 (2) SCC 107], Prabha v. Ram Parkash Kalra [1987 Supp. SCC 339], <CITATION> [1988 (2) SCC 142], <CITATION> [1991 (1) SCC 174], <CITATION> [1993 (1) SCC 572], <CITATION> [1993 Supp (1) SCC 487], <CITATION> [1994 Supp (2) SCC 507] and <CITATION> [1995 Supp (1) SCC 37; this Court in <CITATION> . [1996 (3) SCC 132] held:

"It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this <ORG> - be it by private party or the <ORG> - are barred by limitation and this <ORG> generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merits. It is equally common knowledge that litigants including the <ORG> are accorded the same treatment and the law is administered in an even-handed manner. When the <ORG> is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing-on-the buck ethos, delay on the part of the <ORG> is less difficult to understand though more difficult to approve, but the <ORG> represents collective cause of the community. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay - intentional or otherwise - is a routine. Considerable delay of procedural red-tape in the process of their making decision is a common feature. Therefore, certain amount of altitude is not impermissible. If the appeals brought by the <ORG> are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression 'sufficient cause' should, therefore, be considered with pragmatism in justice-oriented process approach rather than the technical detention of sufficient case for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of pragmatic approach in justice oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the <ORG> vis-à-vis private litigant could be laid to prove strict standards of sufficient cause. The <ORG> at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the courts or whether cases require adjustment and should authorise the officers to take a decision to give appropriate permission for settlement. In the event of decision to file the appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the <ORG> cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while <ORG> is an impersonal machinery working through its officers or servants."

To the same effect is the judgment of this Court in <CITATION> [1996 (10) SCC 634].

<CITATION> [1995 (6) SCC 614] this Court under the peculiar circumstances of the case@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ condoned the delay in approaching this Court of about 31@@ JJJJJJJJJJJJJJJJJJJJJJJ years. <CITATION> [1998 (7) SCC 123] this Court held that the purpose of Limitation Act was not to destroy the rights. It is founded on public policy fixing a life span for the legal remedy for the general welfare. The primary function of a Court is to adjudicate disputes between the parties and to advance substantial justice. The time limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. The object of providing legal remedy is to repair the damage caused by reason of legal injury. If the explanation given does not smack malafides or is not shown to have been put forth as a part of dilatory strategy, the court must show utmost consideration to the suitor. In this context it was observed:

"It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court."

Looking into the facts and circumstances of the case, as noticed earlier and with the object of doing substantial@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ justice to all the parties concerned, we are of the opinion@@ JJJJJJJJJJJJJJJJJJJ that sufficient cause has been made out by the petitioners which has persuaded us to condone the delay in filing the petitions. Dismissing the appeals on technical grounds of limitation would not, in any way, advance the interests of justice but admittedly, result in failure of justice as the impugned judgments are likely to affect not only the parties before us, but hundreds of other persons who are stated to be senior than the respondents. The technicalities of law cannot prevent us from doing substantial justice and undoing the illegalities perpetuated on the basis of the impugned judgments. However, while deciding the petitions, the reliefs in the case can appropriately be moulded which may not amount to unsettle the settled rights of the parties on the basis of judicial pronouncements made by the courts regarding which the <ORG> is shown to have been careless and negligent. It is paramount consideration of this Court to safeguard the interests of all the litigants and persons serving the Police Department of the <ORG> of Bihar by ensuring the security of the tenure and non disturbance of accrual of rights upon them under the prevalent law and the rules made in that behalf. Accordingly delay in filing the petitions is condoned.

Leave granted.

The facts as noticed earlier are not seriously disputed. The respondent <NAME> had filed Writ Petition No.1556/90 praying therein that he be given the same benefit as was given to the writ petitioners in Writ Petition No.563 of 1985. He contended that similar benefits had been conferred upon many police officers and he had allegedly been discriminated. The writ petition was dismissed as withdrawn on 31st July, 1990 with the observation that "however, this shall not prejudice the petitioners in pursuing a remedy, if any, available to him or pursuing his representation which we are informed is pending with the State". As his representation dated 4.6.1988 had not been considered, <NAME> filed writ petition No.6873 of 1990 in which he prayed:

"Under the above facts and circumstances it is, therefore, prayed that your lordships be graciously pleased to admit this application issue rule NISI and after both parties and there show causes if any allow this application by issuing a writ of directing the respondents to give promotion and other consequential benefits to the petitioner from the post of Inspector of Police to the post of Deputy Superintendent of Police from the date the petitioner is found in legal entitle considering the case for promotion to the post of Deputy Superintendent of Police by treating as confirmed Inspector of Police with effect from 27.7.71 i.e. the date of continuous officiation in the rank of Inspector of Police in the event of judgments and order passed by <ORG> relying on judgment of <ORG> contained in Annexure 1, 2 and 3 of this writ application or pass such other order or orders as to your lordships may be pleased fit and proper."

As the Director General modified his order dated 14th May, 1991 vide his subsequent order dated 13.4.1993, <NAME> filed Writ Petition No.4108 of 1994 wherein he alleged that his seniority had not been fixed correctly in the rank of Inspectors. A learned Single Judge of <ORG> vide his interim order directed appellants herein to issue a regular order of promotion and if so advised to determine the seniority of the writ petitioners in the cadre of Dy.SP of Police. It examined the legality of the order of the Director General of Police dated 13.4.1993 and held:

"The petitioner's seniority once determined in the rank of Inspector with effect from 27.7.1971 cannot be legally altered without notice nor is any justification for the alteration pointed out by the learned <ORG> counsel.

Therefore, his seniority in the rank of Inspector has to be reckoned with effect from 27.7.1971. The date of confirmation, in these circumstances, would, therefore, not to relevant for determining the seniority of the petitioner in the rank Inspector, and is necessary, his confirmation on the post of Inspector would have to as made afresh treating the petitioner to have been placed on probation in the rank of Inspector from 27.7.1971. Further consequential revisions, if necessary, shall also be made in the gradation list of the Deputy Superintendent of Police where the petitioner has been placed at Serial Number 399."

The impugned order was quashed and a direction issued to the appellant to reckon the seniority of the writ petitioners in the rank of Inspectors with effect from 27.7.1971 with all consequential benefits as a result of revision of his seniority in the rank of Inspector as well as that of Dy.SP of Police. Admittedly, this order was not appealed against and ultimately implemented by the authorities of the appellant- State. By order dated 1st October, 1994 the respondent <NAME> was held entitled for promotion to the post of Dy.SP with effect from 11th July, 1981 and not with effect from 25th October, 1975. He again filed writ petition No.697 of 1995 submitting therein that having been confirmed to the lower post of Inspector of Police from 1st March, 1975 his seniority should be counted from the date of confirmation i.e. 25th October, 1975. It was noticed that <NAME> who was allegedly junior to him had been promoted to the post of Inspector with effect from 8th July, 1972. <NAME> claimed to be senior to said <NAME> on the ground of having been promoted as Inspector on officiating basis on 27.7.1971. The learned Single Judge held:

"Having heard the parties, my considered view is that the impugned order dated 1st October, 1994 is completely illegal. The same is against the order and direction of this Court dt.8th April, 1994, passed in CWJC No.4108/91, wherein this court categorically held and directed the respondents to provide the petitioner with the seniority in the rank of Inspector of Police with effect from 27th July, 1971. By the impugned order, as contained in annexure-12, the respondents cannot superseded and/or alter the aforesaid finding of this Court, in fact, Annexure-12 is contemptions.

Apart from the aforesaid fact, numerous decisions, including the decision given by <ORG>, as reported in AIR 1977 SC 2051, it has been held that the seniority of a person cannot be dependent on confirmation, if confirmation itself is fortuitous in nature. In the present case I have taken into note that confirmation of the petitioner and <NAME> to the post of Inspector of Police itself was fortuitous in nature, the same having not been made on the assessment of merit. Such being the position, the impugned order dated 1st October, 1994 cannot be sustained in the eye of law."

The order dated 1st October, 1994 in so far as it related to the writ petitioner was set aside with a direction to the authorities of the appellant-State to consider the case of the writ petitioner for promotion to the post of Dy.SP with effect from 25th October, 1975 i.e. the date when his alleged junior <NAME> was promoted. It was further directed that in case the writ petitioner was found fit for promotion with effect from 25th October, 1975 he would shift back the date of promotion to the post of Dy.SP from 11th July, 1971 to 25th October, 1971. The appellants were further directed to provide all consequential benefits to the petitioners.

Rule 649 deals with the promotion of Sub Inspectors to Inspectors and Reserve Sub-Inspectors to Reserve Inspections and provides:

"649. Inspectors and Reserve Inspectors-- (a) The promotion of Sub-Inspectors to Inspectors, and Reserve Sub-Inspectors to Reserve Inspectors will be made by the Inspector-General on the advice of the Inspector General's Selection Board [Appendix 72(1)] (For period of probation, See Rule 668).

(b) In July the Deputy Inspector-General will call for nominations for promotion to reach him on the date fixed. The form of nomination and the list of enclosures are given in P.M. Form No.102.

(c) At least 14 days before nominations are sent to the Deputy Inspector General the names of the nominees shall be published by the nominating authority in district orders so that those who are not nominated may have an opportunity of representing their cases before the nominations are actually submitted. Officers, having such representation to make, should be given interviews and their cases examined with them.

In case their representations are rejected, those who have been superseded may file representation before Deputy Inspector General. Such representation shall be submitted within 14 days of receipt of information and this shall be forwarded soon to Deputy Inspector General, so that additional nominations may be sent on the orders of Deputy Inspector General.

In forwarding the nominations a certificate must be given of the dates on which the lists were published and intimations sent to those not nominated. In selecting Sub-Inspectors and Reserve Sub Inspectors for promotion, preference should be given to those who have received special commendation for integrity of character and good defective work.

(d) <ORG> [Appendix 72(3)] shall scrutinize the district nominations and shall select from among them in order of merit those whose nominations are to be sent before <ORG> [Appendix 72(1)] on a date to be fixed by the Inspector- General.

(e) <ORG> [Appendix 72(1)] shall scrutinize the nominations of <ORG> and compile a list of selections which should ordinarily be in order of seniority for promotion as vacancies occur. If an officer is placed higher in the list than his seniority warrants a full note giving reason shall be recorded. This list shall be of as many Sub-Inspectors as there are vacancies plus few anticipatory vacancies depending on averages of last few years. Promotions by the Inspector-General under clause (a) shall be confined to this list but if any one does not get appointed from the list, his case shall be reviewed again at the time of preparation of the next year's list and if found fit, he shall be placed above the selected nominees of that year."

The respondent <NAME> is stated to have been promoted as Inspector in terms of the said Rule on@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ 2nd July, 1978. Rule 660(c) deals with the out of turn@@ JJJJJJJJJJJJJJJJJ promotions and reads: "Selection Boards may recommend out of turn promotion of officers with outstanding records of service and competent authorities may order such promotion in deserving cases as they deem fit and proper with the approval of next higher authority.

Officers so promoted should be placed below the officers of the approved existing list of respective rank prepared by <ORG> and be confirmed against substantive vacancies as and when vacancies arise in the order of the list.

Criteria taken together for determining outstanding records of service will be as follows:

i) Award of President's Police Medal and Indian Police Medal, for gallantry and distinguished service.

ii) Should not have been awarded any major punishment till the date of consideration and order of out of turn promotion.

iii) Very good entries in permanent Character Roll.

iv) Citation regarding high standard of investigation, detection and control of crime and intelligence work.

v) Should have ability for shouldering higher responsibilities consonant with the proposed promotion [See <ORG>, dated 12th May, 1976].

<NAME> was promoted under the aforesaid rule on 8.7.1972. The respondent <NAME> prayed his promotion to be made effective from 27th July, 1971 when he jointed as Inspector consequent upon his promotion on officiating basis. The order of his promotion read as:

"Following Sub-Inspectors are promoted to officiate as Inspector w.e.f. the date they join their place of posting noted against each. They will not get the advantage of the previous contained in GOM VII/1966 towards their seniority in the rank of Inspector till they are finally selected by I.G.'s Board.

<NAME> - P.S. <NAME> as usual he will function as Cr.O for Sadar Sub-division....." This Court in <CITATION> ., etc. [1993 (2) SCR 919] held that to enable seniority to be counted from the date of initial appointment and not according to the date of promotion, the incumbent of the post has to be initially appointed "according to the rules". Where the initial appointment is only adhoc and not according to the rules and made as a stop gap arrangements, the officiation on such post cannot be taken into account for considering the seniority. In that case the Court relied upon the judgment of the Constitution Bench in <CITATION> . [1990 (2) SCR 900] wherein it was held that:

"(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.

The corollary of the above rule is that where the initial appointment is only adhoc and not according to rules and made as a stop gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.

(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.

(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly.

(D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down.

(E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date.

(F) Where the rule permits the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule.

(G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject.

(H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative.

(I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers.

(J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinised for finding out any possible error. It is not in the interest of service to unsettle a settled position."

It is thus evident that <NAME> having been promoted on officiating basis with a clear stipulation that he will not get seniority in the rank of Inspector till finally selected could not have preferred a claim regarding his seniority on the basis of promotion of <NAME>, though initially junior to him yet substantively promoted in accordance with Rule 660C on 8.7.1972 whereas <NAME> was promoted after selection under Rule 649 in 1978. <ORG> totally ignored the basic principles governing the service rules and the mandate of law. There was, therefore, no justification of issuing the directions to direct the promotion of <NAME> while deciding the writ petition No.697 of 1995 and dismissing the LPA No.1018/95 vide the judgment impugned in this appeal filed against <NAME>.

It appears that <ORG> totally lost sight of the fact that in his petitions filed from time to time <NAME> had not impleaded any of his seniors as party-respondents. In the absence of persons likely to be affected by the relief prayed for, the writ petitions should have normally been dismissed unless there existed specific reasons for non impleadment of the affected persons. Neither any reason was assigned by the writ petitioner nor the court felt it necessary to deal with this aspect of the matter. Ignoring such a basic principle of law has resulted in the supersession of 168 Inspectors and 407 <ORG>.SPs. The writ petition filed by <NAME> being totally misconceived, devoid of any legal force and prayers made being in contravention of the rules applicable in the case deserved dismissal, which was unfortunately not done with the result that the interests of many seniors have been threatened, endangered and adversely affected. The appeal of the State has, therefore, to be allowed by setting aside the impugned judgment.

<NAME> respondent in his petition has preferred his claim of promotion on the ground of promotion@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ of his junior <NAME> who was impleaded as@@ JJJJJJJJJJJJJJJJJJJ respondent No.6. He had specifically submitted:

"That from the facts, law and circumstances stated above it is clear that the petitioner was at all material times senior to the respondent No.6 and the respondent NO.6 illegally scored a march over him therefore on the principles of recognised service jurisprudence on next below rule, the petitioner should be assigned seniority from 27.7.71 and be confirmed with effect from 2.7.78 and the petitioner be put just above the respondent no.6 in the seniority list of Inspector of Police."

He had prayed that:

"For issuance of appropriate writ, order or direction to direct the official respondents to assign seniority in the rank of Inspector just above the respondent No.6 and to confirm on the post of Inspector with effect from 2.7.78 when his junior respondent no.6 has been confirmed and for grant of all consequential benefits." The writ petition was disposed of holding <NAME> as senior to <NAME> as Sub Inspector of Police having been confirmed as Inspector on 1.4.1982 with observeation: "Subsequently, whatever the advantage, the respondent No.6 has derived in pursuance of different orders of this Court, including the orders/judgments passed in CWJC No.6873/90; 4108/91 and 6975/95, were so obtained by him without impleading the petitioner as part-respondent therein.

In this background, while I do not doubt the decisions given by this Court in different cases of respondent No.6, <NAME> and while I do not doubt the consequential orders which have been issued by the respondents on the basis, I hold that the petitioner cannot suffer for the same and he is entitled for seniority over the respondent No.6 as Inspector of Police, though not promoted, while the Respondent No.6 was granted officiating promotion by way of stop gap arrangement on 27th July, 1971.

Accordingly, the respondents are directed to treat the petitioner as senior to the respondent No.6 as Inspector of Police and provide him with the consequential benefit of the same, including promotion to the next higher post, if the petitioner is found fit for the same."

The appeal filed against this judgment was dismissed on the ground of delay and without consideration of the pleas raised on facts. The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits. In this regard this Court in <CITATION> . [1996 (2) SCC 459] held that citizens have assumed wrong notions regarding the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in <ORG>. The Court observed:

"Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers <ORG> to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination."

Again in <CITATION> . [1997 (1) SCC 35] this Court considered the scope of Article 14 of the Constitution and reiterated its earlier position regarding the concept of equality holding:

"Suffice it to hold that the illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would not form a legal premise to ensure it to the respondent or to repeat or perpetuate such illegal order, nor could it be legalised. In other words, judicial process cannot be abused to perpetuate the illegalities. Thus considered, we hold that <ORG> was clearly in error in directing the appellants to allot the land to the respondents."

<CITATION> [1997 (3) SCC 321] this Court observed:

"The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them, i.e., benefit of withdrawal of resignation. <ORG> was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing mis-appropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similarly circumstanced person claim equality under Section 14 for reinstatement? The answer is obviously "No". In a converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right."

In view of our finding that the judgment of <ORG> in the case of <NAME> being contrary@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ to law was not sustainable and liable to be dismissed, the@@ JJJJJJJJJJJJJJJ impugned judgment in the case of <NAME> case cannot be upheld. The aforesaid respondent is, therefore, not entitled to any relief as prayed for by him on the analogy of the judgments passed and directions given in <NAME>'s case.

We do not agree with the submissions of the respondents that the question of law raised by the appellants in regard to determination of seniority could not be permitted to be raised as allegedly the said point had not been pleaded before <ORG> and is altogether a new point taken for the first time in this Court. As noticed earlier, <ORG> had dismissed the LPAs only on the ground of limitation without deciding the other pleas raised by the appellants. A perusal of LPA No.1018 of 1995 (Annexure P-6) shows that in para 9 the appeallant <ORG> had submitted that the Home Secretary of the <ORG> had filed a counter affidavit in the writ petition No.697 of 1995 stating therein:

"...it is not correct to say that the petitioner (respondent in this appeal) is validly entitled to be promoted to the rank of Deputy Superintendent of Police from earlier date when junior to him namely <NAME> joined as inspector on 8.7.1972 has been promoted to the rank of Deputy Superintendent of Police. The promotion of the petitioner in the rank of Inspector is different from <NAME>. The petitioner was promoted to the rank of Inspector on adhoc basis with effect from 27.7.71 and has been confirmed with effect from 1.3.1975 on availability of permanent vacancy alongwith those Inspectors who were officiated on or before 27.7.1971, whereas <NAME> was promoted in the rank of Inspector out of turn on 8.7.1972 on probation on the basis of Presidents Police Medal from gallantry. After expiry of probation of two years he (<NAME>) had been confirmed with effect from 8.7.1974 and promoted to the rank of Deputy Superintendent of Police, with effect from 25.10.1975, alongwith others. As such petitioner is not validly entitled for promotion to the rank of Deputy Superintendent of police from the earlier date when Sri <NAME> was promoted to the rank of Deputy Superintendent of Police with effect from 25.10.1975."

In the memo of appeal, the appellant herein submitted that the promotion case of the respondent was different from that of <NAME>. It was pleaded:

"....The petitioner was promoted to the rank of Inspector on adhoc basis with effect from 27.7.1971 and later on he was given officiating promotion from that very date, i.e. 27.7.1971 and was confirmed with effect from 1.3.1975 on the availability of permanent vacancy alongwith those Inspectors, who were officiating on or before 27.7.1971 and promoted to the rank of Deputy Superintendent of Police with effect from 11.7.1981 according to seniority. As stated earlier <NAME> was promoted out of turn in the rank of Inspector on 8.7.1972 on the basis of gallantry award by the <ORG>. and the period of probation was treated by the government from 8.7.1972 itself. After expiry of probation of two years he was confirmed with effect from 8.7.1974 and promoted in the rank of Deputy Superintendent of Police from 25.10.1975. It was an exceptional case. This is not followed in general officiating officers are confirmed on availability of permanent vacancy and not put on probation from the date of officiation. If this respondent is put on probation with effect from 27.7.1971 i.e. from the date of officiation so many police officers will be superseded."

The State also submitted that the learned Single Judge of <ORG> had committed a mistake of law by not considering all aspects of the matter before allowing the writ petition on 26th July, 1975 which required to be interfered with by the Division Bench of <ORG> in the LPA. When specific plea regarding facts and law had been raised in the LPA, the arguments of the respondents cannot be accepted that such a plea had been raised by the appellant for the first time in this Court. It is further contended that as the respondent was, in the meantime, appointed/promoted in the <ORG> Cadre and as per requirements of <ORG> he has already submitted his resignation from <ORG>, the acceptance of the appeal and setting aside the directions of <ORG> would result in great hardship to him and amount to unsettling his settled service rights particularly when his promotion/appointment to the <ORG> cadre has not been challenged and is not in dispute. Such a plea by itself cannot be accepted as a ground to dismiss the appeal filed against an order which we have held to be illegal being contrary to law and the Service Rules applicable in the case. Once the judgment is set aside, the consequences have to follow and a person taking advantage or benefit of the wrong orders is to suffer for his own faults which cannot be attributed to anybody-else. However, in appropriate cases this Court can mould the relief to safeguard the interests of a person wherever required. For doing complete justice between the parties, appropriate directions can be given to protect the interests of a person who is found to have been conferred the benefits on the basis of judicial pronouncements made in his favour. As the appellant-State has been found to be careless and negligent in defending its cases, we feel and are inclined to protect the interests of <NAME>, respondent. We are convinced that the interests of justice would be served by holding that despite setting aside the judgments of <ORG> his interests be protected by not disturbing his promotions made from time to time. However, judgments passed in his favour cannot be permitted to be made a basis for conferment of similar rights upon other persons who are shown to have filed writ petitions or representations which, if accepted, are likely to adversely affect the interests of more than 150 Inspectors and 400 Officers in the rank of Dy.SP. Similarly, if any benefit has been conferred upon any other person who has superannuated, no useful purpose would be served by directing his demotion retrospectively and recovery of the excess emoluments paid to him. Under the circumstances, the appeals are allowed/disposed of with the@@ JJJ directions that: (1) Judgments of the learned Single Judge@@ JJJJJJJJJJJJJJJJJ and of the LPA Bench passed in the case of <NAME> impugned in Civil Appeal arising out of SLP (C) No.12013 of 1998 are set aside. (2) Similarly the judgments passed in <NAME> case by the Single Judge and the LPA Bench which are impugned in this appeal arising out of SLP (C) NO.10653/98 are also set aside. (3) In view of setting aside the judgments in both the appeals mentioned above no orders are required to passed in Civil Appeal arising out SLP (C) NO.16740/98. (4) It is, however, made clear that despite setting aside of the impugned judgments the service benefits conferred upon <NAME> consequent upon the judgments of <ORG> shall not be withdrawn and his appointment/promotion in the <ORG> cadre not disturbed. (5) Consequent upon this judgment the appellant-State shall also not take any action against a person conferred with similar benefits as were conferred upon <NAME> if that person has retired and is no more in service. Parties to bear their own costs.


JUDGMENT <NAME>, Kt., C.J.

1. This suit was commenced in <ORG> at Bombay, and is brought by the plaintiffs, who are the landlords, against defendant No. 1, who is the tenant, to eject him from 31-D Matarpakhdi, Mazgaon, Bombay, held by him under a monthly tenancy at a rent of Rs. 125 per month. The tenancy is alleged to have been terminated by notice dated April 29, 1943. The defence of defendant No, 1 is to plead the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944, which I will refer to as "the 1944 Act", and to rely on the fact that before this Act came into operation the plaintiffs had applied to the Controller for a certificate under the Bombay Rent Restriction Order, 1942, (which I will refer to as "the 1942 Order"), which was refused. Such refusal, it is said, is binding upon the plaintiffs under Section 15 of the 1944 Act.

2. In reply the plaintiffs allege that Part II of the 1944 Act is ultra vires and void for the reasons to which I will presently refer.

3. It is obvious that the challenge to the validity of Part II of the 1944 Act raises a question of public importance, since if Part II of the Act be invalid, all premises to which it is intended to apply would in effect never have been controlled at all owing to the; invalidity of the 1942 Order. In these circumstances, the Advocate General for Bombay was added as a party to the suit, which was in effect transferred at his request to <ORG> and has been heard by this bench. No question is raised by any one as to the regularity or propriety of this procedure.

4. As I have already said, the notice to determine the tenancy was given on April 29, 1943, and an application was subsequently made to the Controller under the 1942 Order for a certificate which, if granted, would have had the effect of avoiding the restriction placed on the recovery of possession by the 1942 Order then supposed to be valid. This application was refused, and the plaintiffs then went on appeal to the Collector under Section 12 of the 1942 Order. Again they were unsuccessful. On April 6, 1944, a full bench of this Court held Sections 8, 9 and 12 of the 1942 Order invalid, and accordingly the plaintiffs commenced this suit on April 12, 1944. On May 12, 1944, the 1944 Act was promulgated by the Governor, part of the preamble to the Act being as follows:

AND WHEREAS the Governor of Bombay has assumed to himself under the Proclamation dated the 4th November 1939, issued by him under Section 93 of the Government of India Act, 1935, all powers vested by or under the said Art in <ORG>;

NOW, THEREFORE, in exercise of the said powers, the Governor of Bombay is pleased to make the following Act :.

The relevant sections of the 1944 Act are Sections 9 and 14. Section 9 is as follows:

(1) The landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, rent to the full extent allowable by this Part and performs the other conditions of the tenancy:

Provided that nothing in this section shall apply where the landlord has obtained a certificate from the Controller certifying that the tenant has committed any act contrary to the provisions of Clause (o) or Clause (p) of Section 108 of the Transfer of Property Act, 1882, or has been guilty of conduct: which is a nuisance or an annoyance to any adjoining or neighbouring occupiers or that the rent charged to a sub-tenant is in excess of the standard rent, or that the premises are reasonably and bona fide required by the landlord either for his own occupation or for the occupation of any person for whose benefit the premises are held or for any other cause which may be deemed satisfactory by the Controller.

(2) Where an order for the recovery of possession has been made in favour of a landlord on or after the 6th day of April 1944 but not executed before the date of publication of this Act, the Court by which the order was made may, if it is of the opinion that the order would not have been made if this Part had been in operation at the date of the making of the order, rescind or vary the order in such manner as the Court may think fit for the purpose of giving effect to this Part.

Section 14 is:

(1) Any person aggrieved by an order passed by the Controller, under the provisions of this Part (including an order granting a certificate under the proviso to Sub-section (1) of Section 9 ) may, within fifteen days from the date on which the order is communicated to him, present an appeal in writing to the Collector.

(2) The Collector shall then call for the record of the Controller and after examining the record and after making such further inquiry as he thinks fit, either personally or through the Controller, shall decide the appeal.

(3) The decision of the Collector, and subject only to such decision, the order of the Controller shall, for the purposes of this Part, be final; and no Civil Court shall have jurisdiction to settle, decide or deal with any question) which is by or under this Part required to be settled, decided or dealt with by the Controller and Collector.

5. The Governor's competency to exercise the Provincial legislative function arises by virtue of the powers conferred on him by Section 93 of the Government of India Act, 1935, which I will refer to as "the Constitution Act ", and a Proclamation made by him on November 4, 1939. Section 93 , so far as material, is as follows:

(1) If at any time the Governor of a Province is satisfied that a situation has arisen in which the government of the Province cannot be carried on in accordance with the provisions of this Act, he may by Proclamation

(a) declare that his functions shall, to such extent as may be specified in the Proclamation, be exercised by him in his discretion;

(b) assume to himself all or any of the powers vested in or exercisable by any Provincial body or authority ;

and any such Proclamation may contain such incidental and consequential provisions as may appear to him to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Act relating to any Provincial body or authority:

Provided that nothing in this sub-section shall authorise the Governor <NAME> assume to himself any of the powers vested in or exercisable by <ORG>, or to suspend, either in whole or in part, the operation of any provision of this Act relating to <ORG>." Sub-section (2) deals with revocation, and Sub-section (3) contains certain consequential provisions.

Sub-section (4) is as follows:

If the Governor, by a Proclamation under this section, assumes to himself any power of <ORG> to make laws, any law made by him in the exercise of that power shall, subject to the terms thereof, continue to have effect until two years have elapsed from the date on which the Proclamation ceases to have effect, unless sooner repealed or re-enacted by Act of the appropriate Legislature, and then come the following words which are important:

and any reference in this Act to Provincial Act s, Provincial Laws, or Acts or laws of <ORG> shall be construed as including a reference to such a law.

i.e. a law made by the Governor.

The Proclamation of November 4, 1939, commences with the following preamble:

WHEREAS the Governor of the Province of Bombay is satisfied that a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Governments of India Act, 1935 (hereinafter referred to as 'the Act'):

And the operative part of the Proclamation is this:

Now, therefore, in the exercise of the powers conferred by Section 93 of the Act and with the concurrence of the Governor General, the Governor by this Proclamation

(a) declares that all his functions under the Act shall be exercised by him in his discretion ;

(b) assumes to himself all powers vested by or under the Act in <ORG> and all powers vested in either Chamber of the Legislature but not so as to affect any power exercisable by His Majesty with respect to Bills reserved for his consideration or the disallowance of Acts ; and he hereby makes the following incidental or consequential provisions which appear to him to be necessary or desirable for giving effect to the objects of this Proclamation, namely Then there follow clauses suspending the operation of certain ministerial sections of the Constitution Act and certain sections referential to legislative machinery of <ORG>.

6. Mr. <NAME> in his very full and exhaustive argument has attacked the validity of the 1944 Act on four grounds:

(1) That the Governor legislating under Section 93 of the Constitution Act has not power to legislate retrospectively at all;

(2) That <ORG> itself cannot legislate retrospectively in the concurrent field, and it is said that the law we are concerned with is in the concurrent field;

(3) That Sections 9 and 14 of the 1944 Act are void, because they interfere with the powers and jurisdiction of <ORG> contrary to the proviso to Section 93 of the Constitution Act; and (4) That <ORG> has not power to interfere with the powers and jurisdiction of <ORG>.

7. With regard to the first ground, there is no question as to the retrospective operation of the 1944 Act. Section 2 and Schedules A and B and Sub- section 9(2) , which deals with the period from April 6, to May 12, 1944, make this retroactive operation abundantly clear. So far as the retroactive operation of the exercise of legislative powers is concerned, there is no difference between the position of the Governor General under Section 72 in the Ninth Schedule to the Constitution Act and the position; of a Provincial Governor under Section 93 . Indeed the contrary has not been contended. The position in this respect of the Governor General is covered by authority which is binding upon us. In the case of Emperor v. <NAME> (1943) 46 Bom. L.R. 50 F.B., which is a decision of a full bench of <ORG>, the validity of Ordinance XIV of 1943 promulgated by the Governor General under Section 72 in the Ninth Schedule was challenged, and the Chief Justice, Sir <NAME>, said this (p. 52):

It is argued, in the first instance, that that Ordinance was beyond the powers of the Governor General under Section 72 of the Ninth Schedule to the Government of India Act. But there is really no substance in that point. Under that section the Governor General may, in cases of emergency, make and promulgate Ordinances for the peace and good government of British India or any part thereof, and any Ordinance so made shall, for the space of not more than six months from its promulgation, have the like force of law as an Act passed by <ORG>. That is the material part of the section, and the limitation of six months has been removed by the St. 3 and 4 Geo. VI. c. 33.

It is said that the Governor General cannot pass a retrospective ordinance. But as this Ordinance is to have the like force of law as an Act passed by the Indian legislature, and it has not been disputed that the Indian legislature can pass a retrospective Act, there seems to be no force in that contention.

Nor is there any force in the contention that the Governor General cannot amend an existing Act of the Indian legislature. The same reasoning applies to that. The Indian legislature can amend an Act, and, therefore, the Governor General can under Section 72 . This Court very recently upheld a retrospective Ordinance made by the Governor General in <CITATION> ..

8. The second ground is that <ORG> itself cannot legislate retrospectively in the concurrent field, i.e. in respect of the subject-matters enumerated in list III in the seventh schedule of the Constitution Act , and it is suggested that the 1944 Act deals with the subject-matters enumerated under item 4 "Civil Procedure", item 8 "Transfer of property", item 10 "Contracts" and item 15 "Jurisdiction and powers of all Courts". But even if this was so, the answer in this case is that the Governor General has given his assent to the 1944 Act; and Mr. <NAME> concedes that if there was any repugnancy, it is cured by such assent : (See Section 107(2) ). There is also authority for this in the judgment of Mr. Justice <NAME> in <NAME> v. <NAME> (1939) 3 Fed. L.J. 1 5. Mr. <NAME>, however, says that notwithstanding this there is a distinction in the case of a law which as here is to have retrospective effect. In my opinion, there is no substance in this point. The Governor General has given his assent to the 1944 Act, which is retrospective on the face of it.

9. It is the third ground which really forms Mr. <NAME>'s main assault upon the validity of the 1944 Act. Clearly the proviso to Section 9 of that Act deals with matters which are within the jurisdiction of <ORG> to determine, such as whether the tenant has committed an act contrary to the provisions of Section 108 of the Transfer of Property Act, 1882, or has been guilty of conduct which is a nuisance or an annoyance to any adjoining or neighbouring occupiers. The granting of a certificate with regard to these matters is placed in the hands of an executive officer, a Controller, with an appeal to another executive officer, namely the Collector. Further, by Section 14 it is expressly provided that <ORG> shall have jurisdiction to settle, decide or deal with any question which is by or under this Part required to be settled, decided or dealt with by the Controller and Collector.

Mr. <NAME> points to the proviso to Section 93 of the Constitution Act relating to <ORG>, and he then invites attention to Section 223 of that Act, which is as follows:

Subject to the provisions of this Part of this Act, to the provisions of any Order in Council made under this or any other Act and to the provisions of any Act of the appropriate <ORG> enacted by virtue of powers conferred on that <ORG> by this Act, the jurisdiction of, and the law administered in, any existing <ORG>, and the respective powers of the judges thereof in relation to the administration of justice in the court, including any power to make rules of court and to regulate the sittings of the court and of members thereof sitting alone or in division courts, shall be the same as immediately before the commencement of Fart III of this Act.

10. Two things should be observed : In the first place, there is nothing in the Proclamation itself by which the Governor has assumed to himself any power of <ORG> or suspended, either in whole or in part, the operation of the Constitution Act so far as it relates to High Courts. In the second place, it is provided by Sub- section 93(4) that any reference in this Act to Provincial Act s, Provincial laws or Acts or laws of <ORG> shall be construed as including a reference to such a law, i.e. a law made by a Governor. Under Section 93 such a law is to have the same force and effect as a law enacted by <ORG>. The question is : does the proviso refer to the powers with which the Governor may invest himself under the Proclamation, or does it cut down or restrict what he may do if he invests himself as he has done with the same plenary 'powers as <ORG>? In my opinion, it must be the former. If it were the latter, he could not change the law at all, since he would be suspending the operation of the law as administered in <ORG> as it stood immediately before he assumed the powers under the Proclamation. Be it observed that Section 223 itself is made "subject to the provisions of any Act of the appropriate <ORG>", and the Governor is the appropriate <ORG>. <ORG> is a Provincial authority within the meaning of Section 93 ; and, in my judgment, the effect of the proviso is to prevent the Governor from assuming or suspending the powers and jurisdiction of <ORG> by any Proclamation under Section 93 , but does not extend to alteration of the law by or under the assumed legislative powers which are within the competency of <ORG>, once the Governor has assumed those powers. In my opinion, this is clear when Section 93 is analysed. It provides that in the event therein mentioned the Governor may, by Proclamation, assume to himself all or any of the powers vested in, or exercised by, any Provincial body or authority. As I have already said, <ORG> is such an authority. Then there follows an incidental particularization of some of the things the Proclamation may contain, including provisions for suspending in whole or in part the operation of any provisions of the Act relating to any Provincial authority. Then follows the proviso. In my opinion, the assumption and the suspension mentioned in the proviso are referential to the assumption mentioned in Sub- section 93(1)(b) and the suspension mentioned in the particularization of the subject-matters which the Proclamation may contain. In the result this attack on the validity of the 1944 Act also fails.

11. That brings us to the fourth ground, which is, whether <ORG> could have passed the 1944 Act. The only argument addressed to us on this point is founded on Clause 44 of the Letters Patent, which declares that all the provisions of the Letters Patent, and it is Clause 12 which gives <ORG> jurisdiction, are subject to the legislative powers of the Governor General as therein mentioned. There is nothing1 in this point, since by the conjoint effect of Section 293 of the Constitution Act and Sections 2 and 7 of the Government of India (Adaptation of Indian Laws) Order of 1937 the reference to the Governor General in Clause 44 of the Letters Patent refers to all other competent authorities.

12. It must follow that as a result this action must be dismissed.

Kania, J.

13. These proceedings were started by the plaintiff landlord in August 1941 under the Presidency Small Causes Courts Act to eject his tenant on whom the notice to quit was duly served on April 29, 1941. The relevant provisions of the Government of India Act, the Proclamation issued by the Governor of Bombay under Section 93 , and Bombay Act VII of 1944 enacted by the Governor, have been set out in the judgment of the learned Chief Justice. The only point urged before us is whether Bombay Act VII of 1944 is ultra vires. If the contention fails, these proceedings must be dismissed.

14. The argument that Bombay Act VIII of 1944 is ultra vires is based on four contentions. They are set out in the judgment of the learned Chief Justice. The first contention is that the Governor has no authority to make retrospective legislation and his powers are not co-extensive with those of <ORG>. For this counsel relied on the words of the proviso to Section 93 of the Government of India Act, which was contended to limit the Governor's powers, It was argued that in King-Emperor v. <NAME> [1944] F.C.R. 1 <ORG> expressed the view that an Ordinance, issued by the Governor-General in exercise of his powers under Section 72 of the Government of India Act, cannot be made retrospective. It was contended that the powers of the Governor acting under Section 93 had the same limitations, and therefore the Governor had no power to make retrospective laws. This argument is unsound because <ORG> did not decide that point in <NAME> case. The Court only discussed the various aspects of the powers of the Governor General acting under Section 72 and at p. 15 stated:

As the general question framed by <ORG> cannot be satisfactorily answered without further discussion of the above and other similar aspects of the problem, we refrain from expressing any final opinion upon it, as no such decision is necessary for the disposal of "these cases.

The argument advanced before <ORG> was in respect of Sections 2 and 3 of Ordinance XIV of 1943. <ORG> thus declined to express any definite opinion in respect of Section 2 , while in respect of Section 3 it decided that the same was valid. On the other hand our <ORG> in <CITATION> expressed the opinion that in construing emergency legislation it is not necessary to express words or necessary intent to make the same of retrospective effect, unlike the normal rule of construction applicable to Acts passed in normal times. A full bench of this Court in Emperor v. <NAME> (1943) 46 Bom. L.R. 50 F.B. held that the Governor General's powers to make retrospective Ordinance was valid and relied on the previous decision of this Court in <CITATION> (supra). In order to consider whether the Governor has such power or not the relevant question is what is the position of the Governor on the issue of a proclamation under Section 93 . If his powers are the same as of <ORG>, he has the power to pass laws having retrospective effect. This cannot be disputed because <ORG>, within the orbit of its legislative sphere, has plenary powers, and all legislatures having plenary powers are held to have power to make laws with retrospective effect within the scope of its authority. This contention will therefore depend on the decision of the third contention urged on behalf of the landlord.

15. The second contention is that <ORG> cannot legislate retrospectively on matters falling in the concurrent list. It was not disputed that in respect of the exclusive list II, found in the seventh schedule of the Constitution Act , <ORG> had authority to pass a law having retrospective effect. The contention was that in respect of the concurrent list <ORG> had not unconditional and absolute plenary powers because <ORG> had also authority to pass laws on the same matters. I apprehend that the two questions are mixed up in advancing this argument. The first question is whether the Act passed by the appropriate authority in respect of a concurrent list is valid or not. The second question is whether, it being valid, there can remain any objection to its validity on the ground that it has been given retrospective effect. The question of validity of the Act must depend on the true construction of Section 100 and Section 107(2) of the Government of India Act. In <NAME> v. <ORG> <ORG> had occasion to distinguish the spheres of the separate lists and the concurrent list found in the seventh schedule to the Constitution Act . It observed (p. 57):

On a very strict interpretation of Section 100 , it would necessarily follow that from all matters in list II which are exclusively assigned to <ORG>, all portions which fall in list I or list III must be excluded. Similarly, from all matters falling in list III, all portions which fall in list I must be excluded. The section would then mean that <ORG> has full and exclusive power to legislate with respect to matters in list I, and has also power to legislate with respect to matters in list III. A <ORG> has exclusive power to legislate with respect to list II 'minus matters falling in list I or list III, has concurrent power to legislate with respect to matters in list III, 'minus matters falling in list I'. In its fullest scope Section 100 would then mean that if it happens that there is any subject in list II which also falls in list I or list III it must be taken as cut out from lislt II. On this strict interpretation there would be no question of any real overlapping at all. If a subject falls exclusively in list II and no other list, then the power of <ORG> is supreme. But if it does also fall within list I, then it must be deemed as if it is not included in list II at all. Similarly, if it also falls in list III, it must be deemed to have been excluded from list II. The dominant position of <ORG> with regard to matters in list I and list III is thus established. But the rigour of the literal interpretation is relaxed by the use of the words 'with respect to' which as already pointed out only signify 'pith and substance,' and do not forbid a mere incidental encroachment. But, even if such an accidental encroachment may be ordinarily permissible, the field may not be clear. There may be competency and yet repugnancy also. The question is how to prevent a clash, if the trespass is on a field already occupied by <ORG>.

Under Section 107(2) it is clear that in respect of an item found in the concurrent list if an Act of <ORG> exists and <ORG> passes an Act, the same has to receive the consent of the Governor General. The effect of such consent is also provided for in the same section. The effect is that in the Province the Provincial Act is supreme. It is further provided that this need not prevent <ORG> from further passing an Act, if it was so minded, but its authority to pass such Act is circumscribed by the previous consent of the Governor-General being obtained to introduce any Bill for that purpose. Therefore, once it is found that the sanction of the Governor-General under Section 107(2) in respect of a Provincial Act has been obtained, there can remain no question of repugnancy. In the Province, the Provincial Act has the overriding force. Once that stage is reached, I do not see how the question of the Act being ultra vires, because it gives retrospective effect, remains. The Governor-General having given consent to the Provincial Act , <ORG> is given power to pass that law and it is valid. If so, the same is within the powers of <ORG>. <ORG>, having plenary powers, is entitled to enact a law having retrospective effect, and I do not see any difference in the position of an Act passed in respect of an item mentioned in the concurrent list, which has obtained the consent of the Governor-General, and an Act passed in respect of a matter in the exclusive list, after both are held valid. This argument must therefore fail.

16. The third contention was subdivided under four heads. It was first contended that the power of the Governor to interfere with the jurisdiction of <ORG> was expressly excluded by the proviso to Section 93(1) of the Government of India Act of 1935. A similar provision, with regard to the Governor-General containing a similar proviso, is found in Section 45 , when the machinery of <ORG> breaks down. The bearing of the two sections on the scheme of the Constitution Act has therefore to be considered together. The argument is put thus : By the proviso it is enacted that nothing in the sub-section shall authorise the Governor to suspend, either in whole or in part, the operation of any provision of this (Constitution) Act that relates to <ORG>. It was argued that Section 223 of the Constitution Act maintained the jurisdiction of <ORG> as it existed till then. By that section the proper authority was given power to interfere with that jurisdiction. Therefore, Section 223 was a provision of the Constitution Act relating to <ORG>, and the operation of that section covered the exercise of jurisdiction of the existing <ORG>s. The proviso to Sections 9 and 14 of the Act VII of 1944, during the existence of that Act, prevented <ORG> from exercising its jurisdiction in respect of Section 108 of the Transfer of Property Act and administering that law in <ORG> and thus suspended the operation of Section 223 of the Constitution Act. The Bombay Act therefore clearly infringed the words of the proviso and was invalid. In order to appreciate the force of this argument, it is necessary to scrutinise the scheme of Section 93 . The section provides for the assumption by the Governor of a province of the government, when a situation had arisen under which the government could not be carried on in accordance with the provisions of the Constitution Act . The first part of the sub-section provides that in such circumstances and with that object the Governor may by a proclamation (a) declare that its function shall be exercised by him in his discretion, and (b) assume to himself all or any of the powers vested in or exercisable by any provincial body or authority-Clause (b) only is relevant for the present discussion. The Governor, therefore, by a proclamation can assume to himself all the powers of any provincial body or authority. Inasmuch as <ORG> of a province exercises jurisdiction and has powers exercisable within the province, it is a provincial authority. If the section stopped there, it could be contended that when issuing the proclamation the Governor could state that he would assume the functions of <ORG>. The first part of the proviso prevents that possibility. The second part of the sub-section proceeds to state that any such proclamation may contain incidental and consequential provisions, as may be necessary to the objects of the proclamation, including provisions for suspending the operation of any provision of this Act relating to any provincial body or authority. (I have omitted the words which are not material for the present discussion). Therefore, in the proclamation the Governor is given further power to make incidental and consequential provisions which are to attain the objects of the proclamation. Such provisions may include the suspension of the operation of certain provision of the Constitution Act which relate to a provincial body of authority. The second part of the proviso follows the exact words of the last part of the sub-section. The result, therefore, is that if the words in the second part of the proviso did not exist, although the Governor may not assume powers under Clause (b), in including incidental and consequential provisions in the proclamation he may suspend the operation of any section relating to <ORG>. The second part of the proviso prevents him from doing so. That appears to be the plain scheme of Sub-section (1) read with the proviso.

17. The question to be determined is whether the Governor when acting under Section 93 has infringed the words of this proviso. He has not assumed any of the powers of <ORG>. He has not suspended the operation of any provision relating to it. The answer, therefore, to the argument advanced on behalf of the landlord is clearly in the negative. The approach to Section 223 , contained in the argument advanced on behalf of the plaintiffs, is erroneous because in passing Act VII of 1944 the Governor has not suspended the operation of any provision relating to <ORG>, but in fact he is acting under Section 223 . By the proclamation he has assumed all the legislative functions which are vested in <ORG>. The result is that after the proclamation he becomes <ORG>, and for the purpose of passing laws in respect of any items mentioned in list II or list III he is the proper legislative authority within the meaning of Section 223 . The contention that the Bombay Act trespasses on or curtails the jurisdiction of <ORG> is confusing the issue. The only question before the Court is whether the Governor in assuming the powers which he is entitled to under Section 93 has suspended the operation of Section 223 . The answer clearly is in the negative, because, firstly, he has not so stated in the proclamation, and, secondly, he has not suspended but is acting under Section 223 . It may be argued that this construction renders the proviso quite ineffectual. In my opinion, that is not correct. Under Section 223 the alteration in the jurisdiction of and the law administered in any existing <ORG>, can be effected by a provision or any Order-in-Council made under the Constitution Act , or any Act of the appropriate <ORG>. The last would include an Act of the Central <ORG>. Item 15 in list III in the seventh schedule gives authority to the Central <ORG> to pass laws in respect of jurisdiction and powers of all <ORG>, which would include a <ORG>. If the Governor, acting under Section 93 , proclaimed that a portion of Section 223 was suspended, while he himself retained, the power to act in the capacity of a Provincial <ORG> to pass laws in respect of the matters included in list II and list III to the extent the field was not already occupied by any Central Act , he would deprive the authority entitled to issue an Order-in-Council and the Central <ORG> from passing any Act which would affect the jurisdiction of or the law administered in the Provincial <ORG>. It is clear that the proviso is framed to prevent the Governor from creating that situation. In my opinion, this construction of Section 93 and Section 223 is perfectly logical and according to the scheme of the Government of India Act. Therefore, the contention that the proviso prevents the Governor from enacting Bombay Act VII of 1944 is unsound.

18. The second branch of the argument under this heading was that the powers are limited to the purposes mentioned in Section 93 , and in this connection counsel referred to Sections 88 and 89 of the Constitution Act. It was urged that in these sections the powers of the Governor are limited to the purposes mentioned therein. This argument is unsound, because the powers under each section are controlled by what is mentioned in the particular section. It is true that in the present case the powers to be assumed by the Governor are for the purposes mentioned in Section 93 . But it is irrelevant to consider whether; the passing of Bombay Act VII of 1944 is for the purpose of Section 93 . The two questions are quite independent. For the purpose of Section 93 the only question is whether the Governor has assumed the necessary powers required to achieve the objects mentioned therein. It has nothing to do with the question whether the exercise of the legislative functions, which are vested in him on the assumption of powers under Section 93 , is for the purpose of Section 93 .

19. The third part of this argument was that the 'law passed by the Governor' is not an Act of the <ORG>, and, therefore, the words of Section 223 are not complied' with. It is described as the law. In this connection counsel relied on the interpretation clause Section 311(6) and Section 311(2) , which defined the Provincial Act and the Provincial Law. This contention overlooks the express words of Section 93(4) . The concluding words of that sub-section clearly show that wherever there is a reference to Provincial Act in the Constitution Act , the same is to include the Governor's law passed under Section 93 . Reference to Section 311(6) is not useful because the general interpretation clause need not necessarily repeat what had already been provided by the <ORG> in Section 93(4) . This argument therefore has no substance.

20.The last argument advanced under this heading was the same as the fourth contention advanced in a different form. The contention was that Clause 44 of the Letters Patent can be altered only by <ORG> and not by <ORG>, and therefore much less by the Governor acting under Section 93 . This contention overlooks the provision made in the Government of India (Adaptation of Indian Laws) Order, 1937. Section 293 of the Constitution Act is wide enough to cover the Letters Patent, as a law, according to the last sub-clause of that section. Under Section 2(2) of the Adaptation of Laws Order, 1937, 'Indian law' includes every law which is covered by Section 293 of the Constitution Act. Under Section 7 of the Adaptation of Laws Order "proper authority" is the authority entitled to legislate on the subject in question. Reading all these together, it is clear that the proper authority to legislate in respect of the matter in question is <ORG>. As the powers of <ORG>, by virtue of the Proclamation issued under Section 93 , are now vested in the Governor, the proper <ORG> is the Governor. This contention therefore must also fail.

21. I therefore agree that the proceedings adopted by the plaintiffs must fail and should be dismissed.

22. Per Curiam. Certificate, under Section 205 of the <ORG> of India Act, to issue. With regard to costs, this matter is admittedly within <ORG> jurisdiction. It was transferred to <ORG> on the application of <ORG> as raising a question of public importance. It is true that the litigating parties did not object; but the result has been that considerably more costs have been incurred, whilst <ORG> have got a decision upon this matter of public importance. In the exercise of our discretion we think that the fair and proper order to make in these circumstances with regard to the first defendant's costs is, first, to quantify them at Rs. 1,000 (one thousand) including all previous orders for costs, and then to direct that half that sum should be paid by the plaintiffs and half by the second defendant. Defendant No. 2 will bear his own costs.