Input:
Civil Appeal No. 1773 of 1971.
(From the Judgment and order dated 20 2 1970 of the Allahabad High Court in Civil Misc.
Writ Petition No. 2943/69) S.C. Manchanda and O.P. Rana, for the Appellants.
V.S. Desai, P.B. Agarwala and B.R. Agarwala, for the Respondents.
838 The Judgment of the Court was delivered by JASWANT SINGH, J.
This appeal by certificate which is directed against the judgment and order dated February 20, 1970, passed by the High Court of Judicature at Allahabad in writ petition No. 2943 of 1969 raises two interesting ques tions viz. ( 1 ) whether carbon paper is paper falling within the purview of the word 'paper ' as used in serial No. 2 of Notification Ng.
ST 3124/X 1012(4) 1964 dated July 1, 1966, issued by the Governor of Uttar Pradesh in exercise of the power vested in him under section 3 A of the U.P. Sales 'Fax Act, 1948 (U.P. Act No. XV of 1948) so as to be liable to sales tax at the point and at the rate specified in the Schedule to the Notification and (2) whether ribbon is an accessory or a part of the typewriter.
It appears that the respondent which is a company incor porated under the Indian Companies Act dealing in carbon paper, typewriter, ribbon, stepler machines and stepler pins, despatches the said goods from its head office at Bombay to its branch office at Kanpur wherefrom sales there of are effected in the State of Uttar Pradesh.
During the course of the assessment proceedings for the assessment year 1956 57, the respondent claimed that carbon paper not being paper falling within the ambit of Entry No. 2 of the Schedule to the aforesaid Notification but a specialised article used for copying purposes, its turnover had to be assessed at the rate of 2 per cent prescribed for unclassi fied goods and not at the rate of 6 paise per rupee i.e. 6% prescribed in the aforesaid Notification.
The respondent further claimed that ribbon being an accessory anti not a part of the typewriter, its turnover could not be subjected to sales tax at the rate of 10% prescribed inter alia for typewriters and parts thereof by Notification No. ST 1738/X I012 1963 dated June 1, 1963.
The Sales Tax Officer, (Section IV), Kanpur, did not accede to the conten tions of the respondent and holding that carbon paper re mained paper even after going through certain chemical processes and that ribbon was a part of the typewriter, taxed the turnover of carbon paper for the period commencing from July 1, 1966, to the end of March, 1967 at 6% and that of ribbon at 10%.
He, however, taxed the turnover of carbon paper for the period April 1, 1966 to June 30, 1966 at 2%.
The validity and correctness of this order in so far as it related to the levy of tax on carbon paper at 6% and ribbon at 10% was challenged by the respondent by means of the aforesaid writ petition before the High Court at Allahabad which by its aforesaid judgment and order allowed the same and quashed the levy.
Hence this appeal.
Appearing in support of the appeal, Mr. Manchanda has assailed the reasoning and approach of the High Court and has vehemently urged that carbon paper does not lose its character as paper even after being subjected to chemical processes and that ribbon is not an accessory but an essen tial part of the typewriter.
We have carefully considered the submission made by Mr. Manchanda but find ourselves unable to accept the same.
839 It is well settled that a word which is not defined in an enactment has to be understood in its popular and commer cial sense with reference to the context in which it occurs.
In Attorney General vs Winstanley (1), Lord Tenterden started as follows: "Now, when we look at the words of an Act of Parliament, which are not applied to any particular science or art, we are to construe them as they are understood in common language.
" In Grenfell vs Commissioners of Inland Revenue (2) Pollock, J, pointed out: "As to tile construction of the Stamp Act, I think it was very properly urged that the statute is not to be construed according to the strict or technical meaning of the language contained in it, but that it is to be construed in its popular sense, meaning, of course, by the words 'popular sense ' that sense which people conversant with the sub ject matter with which the statute is dealing would attribute to it." The word 'paper ' admittedly not having been defined either in the U.P. Sales Tax Act, 1948 or the Rules made thereunder, it has tO be understood according to the afore said well established canon of construction in the sense in which persons dealing in and using the article understand it.
It is, therefore, necessary to know what is paper as commonly or generally understood.
The said word which is derived from the name of reedy plant papyrus and grows abundantly along the Nile river in Egypt is explained in 'The Shorter Oxford English Dictionary (Volume 2) (Third Edition) as "a substance composed of fibres interlaced into a compact web, made from linen and cotton rags, straw, wood, certain grasses, etc., which are macrated into a pulp, dried and pressed; it is used for writing.
printing, or drawing on, for wrapping things in, for covering the interior of wails, etc.
" In 'Encyclopaedia Britannica ', (Volume 13), (15th Edition), 'paper ' has been defined as the basic material used for written communication and the dissemination of information.
" In the Unabridged Edition of "The Randon House Dicition ary of the English Language", the word 'paper ' has been defined as "a substance made from rags, straw wood ' or other fibrous material, usually in thin sheets, used to bear writing or printing or for wrapping things, decorating walls etc.
" From the above definitions, it is clear that in popular parlance, the word 'paper ' is understood as meaning a sub stance which is used for bearing, writing, or printing, or for packing, or for drawing on, or for decorating, or cover ing the walls.
Now carbon paper which is manu (1) [1831] 2 Dow & Clark 302=(1901) ; (2) at 248.
840 factured by coating the tissue paper with a thermo setting ink (made to a liquid consistency) based mainly on wax, non drying oils, pigments and dyes by means of a suitable coat ing roller and equalising rod and then passing it through chilled rolls cannot be used for the aforesaid purposes but is used.
according to 'The Randon House Dictionary of the English Language ' between two sheets of plain paper in order to reproduce on the lower sheet that which is written or typed on the upper sheet i.e. making replicas or carbon copies cannot properly be described as paper.
It will be well at this stage to refer to a few deci sions which confirm our view.
In Kilburn & Co. Ltd. vs Commissioner of Sales Tax U.P., Lucknow(I) a Bench of Allahabad High Court while examining the very same entry in the Notification with which we are concerned in the instant case and holding that "Ammonia paper and ferro paper used for obtaining prints and sketches of site plans are not paper us understood generally and, therefore, will not come within the expression 'paper other than hand made paper ' as used in Notification No. ST 3124/X 1012(4) dated 1st July, 1966, issued under section 3 A of the U.P. Sales Tax Act, 1948" observed : "The word 'paper ' has not been defined in the Act or the Rules, and, as such, it has to be given the meaning which it has in 'ordinary parlance.
Paper, as understood in common parlance, is the paper which is used for printing.
writing and packing purposes.
" In Sree Rama Trading Company vs State of Kerala(2) the High Court of Kerala after a good deal of research held that cellophane is not paper coming within entry 42 in the First Schedule to the Kerala General Sales Tax Act, 1963, as it stood at the time relevant to the year 1966 67.
In State of Orissa vs Gestetner Duplicators (P) Ltd.(3) the HIgh Court of Orissa held that stencil paper was not paper within the meaning of serial No. 7 A of the Schedule to the Notification issued by the State Government under the first proviso to section 5(1) 'of the Orissa Sales Tax Act, 1947 and that sale of stencil paper was, therefore, not taxable at the rate of 7 per cent but is exigible to tax at the rate of 5 per cent.
In Commissioner of Sates Tax, U.P, vs
S.N. Brothers(1) this Court while upholding the decision of the Allahabad High Court which held that 'food colours ' and 'syrup es sences ' arc .edible goods while 'dyes and colours and compo sitions thereof and 'scents and perfume ' did not seem prima facie to connote that they are edible goods observed: (1) 31 S.T.C. 625.
(2) 28 S.T.C. 469.
(3) 33 S.T.C. 333.
(4) 31 S.T.C. 302. 841 "The words 'dyes and.
colours ' used in entry No. 10 and the words: scents and perfumes ' used in entry No. 37 have to be construed in their own context and in the sense, as ordinarily understood and attribut ed to these words by people usually conver sant with and dealing in such goods.
Simi larly, the words "food colours" and "syrup essences", which are descriptive of the class of goods the sales of which are to be taxed under the Act, have to be construed in the sense in which they are popularly understood by those who deal in them and who purchase and use them.
" Bearing in mind the ratio of the above mentioned decisions, it is quite clear that the mere fact that the word 'paper ' forms part of the denomination of a specialised article is not decisive of the question whether the article is paper as generally understood. 'the word 'paper ' in the common parlance or in the comercial sense means paper which is used for printing, writing or packing pur poses.
We are, therefore, clear of opinion that Carbon paper is not paper as envisaged by entry 2 of the aforesaid Notification.
Regarding ribbon also to which the above mentioned rule construction equally applies, we have no manner of doubt that it an accessory and not a part of the typewriter (unlike spool) though it may not be possible to use the latter without the former.
Just as aviation petrol is not a part of the aero plane nor diesel is a part of a bus in the same way, ribbon is not a part of the type writer though it may not be possible to type out any matter without it.
The very same question with which we are here confronted came up for decision before the High Court of Mysore in State of Mysore vs Kores (India)Ltd.
(1) where it was held: "Whether a typewriter ribbon is a part of a typewriter is to be considered in the light of what is meant by a typewriter in the commer cial sense.
Typewriters are being sold in the market without the typewriter ribbons and therefore typewriter ribbon is not an essen tial part of a typewriter so as to attract tax as per entry 18 of the Second Schedule to the Mysore Sales Tax Act, 1957.
" For the foregoing reasons, we do not find any force in this appeal which is dismissed but in the circumstances of the case without any order as to costs.
M.R. Appeal dismissed (1) 26 S.T.C. 87.

Output:
The Governor of U.P. issued a Notification under Section 3 A of the U.P. Sales Tax Act, 1948, and the Sales Tax Officer (Section IV) Kanpur, ordered the respondent company to pay tax on the turnover of ' carbon paper at 6%, and that of ribbon at 10%, as per entry 2 of the Notification.
The respondent challenged the order in a writ petition before the High Court.
contending that carbon paper was not 'paper ' with the meaning of entry 2 and its turnover was therefore to be assessed at the rate of 2% prescribed for unclassified goods, and that 'ribbon ' being an accessory and not a part of the typewriter, could only be taxed at the rate of 6% and not 10%.
The High Court allowed the writ and quashed the levy.
The appellant contended that carbon paper does not lose its character as paper in spite of being subjected to chemi cal processes, and that ribbon is not an accessory but an essential part of the typewriter.
Dismissing the appeal the Court, HELD :(1) A word which is not defined in an enactment has to be understood in its popular and commercial sense with reference to the context in which it occurs.
It has to be understood according to the well established canon of construction in the sense in which persons dealing in and using the article understand it.
[839 A B] Attorney General vs Winstanley (1831) 2 Dow & Clark 302:(1901) ; , and Grenfell vs Commissioner of Inland Revenue (1876)1 exhibit D. 242 at p. 248 applied.
(2) The word 'paper ' is understood as meaning a sub stance which is used for bearing writing or printing, or for packing.
or for drawing on.
or for decorating, or covering the wails.
Carbon paper cannot be used for these purposes but is used for making replicas or carbon copies, and cannot properly be described as paper.
[839 G, 840 A B] K. Kilburn & Co. Ltd. vs Commissioner of Sales Tax, U.P. Lucknow (31 S.T.C. 625), Sree Rama Trading Company vs State of Kerala (28 S.T.C. 469).
state of Orissa vs Gestetner Duplicators (P) Ltd. (33 S.T.C. 333 ) Commissioner of Sales Tax, U.P.v.
S.N. Brothers (31 S.T.C. 302) applied.
(3) The above mentioned rule of construction equally applies to ribbon.
an accessory and not a part of the typewriter, though it may not be possible type out any matter without it.
[841 D E] State of Mysore vs Kores (India) Ltd. (26 S.T.C. 87) ap proved.


Input:
tition Nos.
4480 of 1980 and 2962 of 1981 (Under article 32 of the Constitution of India) S.N. Jha for the Petitioner in W.P. 4480/80.
Girish Chandra for the Petitioner in W.P. 2962/81.
M.M. Abdul Khadar and R.N. Poddar for the Respondent.
The Judgment of the Court was delivered by CHANDRACHUD, C. J.
The petitioners, Prem Prakash and Dal Chand Anand, are members of a scheduled caste.
By these writ petitions under article 32 of the Constitution, they ask for a writ of mandamus directing the respondents to appoint them against 567 the vacancies reserved for members of Scheduled Castes and Scheduled Tribes in the Delhi Judicial Service.
They also ask for a writ of prohibition to the effect that the respondents should not fill up the reserved vacancies for which they competed, either by holding a fresh examination or by appointing candidates who had qualified in any previous examination.
The Union of India, the Administrator of the Union Territory of Delhi and the Registrar of the Delhi High Court are respondents 1, 2 and 3 to these petitions.
On September 26, 1979, the Registrar of the Delhi High Court published a newspaper advertisement that the Delhi High Court will hold an examination for recruitment of officers to the Delhi Judicial Service on January 11, 12 and 13, 1980 in the time scale pay of Rs. 650 1200.
The advertisement stated that the total number of vacancies was 16, out of which 2 were reserved for Scheduled Castes and 1 for Scheduled Tribes.
In addition, according to the advertisement, there were 2 carry forward vacancies for members of Scheduled Tribes.
In case of non availability of Scheduled Tribes candidates, those vacancies were liable to be transferred as reserved vacancies for Scheduled Castes candidates.
A competitive examination was held in pursuance of the said advertisement in accordance with the Delhi Judicial Service Rules, 1970 which were framed by the Lieutenant Governor of Delhi in consultation with the High Court of Delhi.
Rules 18 and 28 read thus: "Rule 18 The Selection Committee shall prepare a list of candidates in order of merit.
Such list will be forwarded to the Administrator for filling the vacancies then existing or any vacancy that may occur within a period of one year of the preparation of the list." "Rule 28 Appointments made to the Service by competitive examination shall be subject to order regarding special representation in the Service for Scheduled Castes and Scheduled Tribes issued by the Central Government from time to time.
" The Brochure on 'Reservation for Scheduled Castes and Scheduled Tribes in Services ', (5th ed., 1978) issued by the Government of India, Dept. of Personnel and Administrative Reforms, Ministry of Home Affairs contains orders and instructions issued by 568 the Government of India from time to time on the question of reservation of vacancies for Scheduled Castes and Scheduled Tribes candidates.
The relevant paragraphs of that Brochure read as follows: "2.1 Subject to Exemptions and Exclusions referred in Chapter 3, the following reservations are in force in favour of SC and ST in filling vacancies in posts and services under the Govt.
of India.
(1) Direct recruitment on an all India basis: SC ST (a) By open competition(i.e., 15% 71/2% through the UPSC or by means of open competi tive test held by any other authority)".
"4.2 The actual number of vacancies to be reserved for SC and ST in any recruitment should be determined on the basis of the points in the roster and also taking into account the reservations brought forward from the previous year, the total number of reservations not exceeding normally 50% of the total number of vacancies filled in that year.
However, the carry forward reserved vacancies would be available together with the current reserved vacancies for utilisation even where the total number of such reserved vacancies exceed 50% of the vacancies filled in that year provided, the over all representation of SC/ST in the total strength of the concerned grade or cadre is found to be inadequate, i.e., the total number of SC/ST candidates in that grade has not reached the prescribed percentage of reservation for SC/ST respectively, in the grade, as a whole".
"9.2 Advertisement of reserved vacancies for posts filled by direct recruitment through examination: Where direct recruitment is made through examination, for reserved as well as unreserved vacancies, a single advertisement would be issued for such examination but the number of the vacancies reserved for SC and ST would 569 be specified clearly in it and in case the required number of SC or ST candidates are not available even by applying relaxed standards for the vacancy/vacancies reserved for them, the remaining vacancy/vacancies should be filled by general candidate after dereservation of such vacancy/vacancies, subject to the reservations being carried forward as required." "11.1 Carry over of reservations: If a sufficient number of reserved communities candidates fit for appointments against reserved vacancies are not forthcoming, such vacancies can be dereserved after following prescribed procedure for dereservation as in Chapter 10 and thereafter they can be filled by candidates of other communities, but the reservations shall be carried forward to subsequent three years of recruitment (except in the case of. . . . . ) where there will be no carry forward of unfilled reserved vacancies, the total number of reservations not exceeding normally 50% of the total number of vacancies to be filled in that year.
The surplus, if any, above 50% when the ceiling of 50% is applied, shall be carried forward to the subsequent year of recruitment, subject, however, to the condition that the particular vacancies carried forward do not become time barred due to their becoming more than three years old.
However, the carried forward reserved vacancies would be available together with the current reserved vacancies for utilisation even where the total number of such reserved vacancies exceeds 50% of the vacancies filled in that year provided, the overall representation of SC & ST in the total strength of the concerned grade or cadre is found to be inadequate, i.e., the total number of SC/ST candidates in that grade has not reached the prescribed percentage of reservation for SC/ST respectively, in the grade, as a whole".
"Note (2): Any recruitment of SC/ST candidates will first be counted against the additional quota brought forward from the previous years in their chronological order.
If SC/ST candidates are not available for all the vacancies, the older, carried forward vacancies should be filled first 570 and the comparatively later carried forward vacancies should be further carried forward".
The petitioners appeared for the examination and passed it, though by relaxation of the minimum standard prescribed for passing the examination.
They were then asked to appear at the viva voce test conducted by the Selection Committee, which they did.
Since, only seven open candidates and four Scheduled Caste candidates qualified in these tests, the High Court prepared a merit list of 11 candidates as against 16 vacancies which were advertised.
Dal Chand Anand, who is petitioner in Writ Petition No. 2962 of 1981, was 10th in the merit list while Prem Prakash, who is petitioner in Writ Petition No. 4480 of 1980, was 11th in that list.
They were respectively 3rd and 4th in the merit list amongst the 4 Scheduled Caste Candidates.
Since they did not figure in the final list of candidates selected by the Administrator, they have filed these petitions to challenge their exclusion and non appointment.
A counter affidavit has been filed on behalf of respondent 3 by Shri Ramesh Sharma, Assistant Registrar of the Delhi High Court.
The position taken up by the Delhi High Court in that affidavit may be summarized thus: The Delhi Judicial Service was constituted on August 2, 1971.
Rule 28, which provides for special representation for members of the Scheduled Castes and Scheduled Tribes, is applicable to the recruitment made through a competitive examination only and, therefore, no reservations were made either in favour of Scheduled Castes or Scheduled Tribes at the stage of the initial recruitment to the Service, which was not by competitive examination.
Representations were, however, made to the Ministry of Law and Justice as a result of which, the Delhi Administration was instructed administratively to take suitable steps, if necessary by amendment of the recruitment Rules, so as to provide for reservations for the Scheduled Castes and Scheduled Tribes at the initial constitution of the Service also.
In a meeting of officers of the Ministry of Law and Justice, the Delhi Administration and the High Court, which was held in November, 1971, it was decided that 15 per cent of the vacancies filled in the Delhi Judicial Service should be reserved for Scheduled Castes and 71/2 per cent for Scheduled Tribes and that, vacancies which ought to have been reserved for these categories at the initial recruitment should be carried forward to the following year.
The statutory rules were not amended in pursuance of this decision, which is but one instance of the wide chasm which exists between the lip service paid to the need for 571 reservations for backward classes and the actual performance in terms of social awareness.
The counter affidavit says that the 6th competitive examination at which the petitioners appeared was held in 1980.
16 Vacancies were notified, out of which 11 were for open candidates, 2 for Scheduled Castes and 3 for Scheduled Tribes.
Two out of the three vacancies reserved for Scheduled Tribes were interchangeable in the sense that, if candidates from Scheduled Tribes were not available, those vacancies could be added to the quota reserved for Scheduled Castes.
The counter affidavit of the High Court contains a candid admission in paragraph 17 that when, in 1980 and 1981, the High Court examined the question of reservation of vacancies for Scheduled Castes and Scheduled Tribes right from the stage of initial constitution of the Service in 1971, it found that "there was apparently a violation of statutory Rules and the vacancies had been wrongly calculated by the Registry of the High Court".
The High Court rectified its error by recommending the appointment of 2 Scheduled Caste candidates for the 1980 vacancies from amongst the candidates who had qualified in the 1979 competitive examination but who, on account of a mistaken calculation, were not appointed to the reserved seats.
We are happy to find that consistency in adhering to errors is not the hobgoblin of our High Courts.
The factual position which emerges out of the averments in the Writ Petitions and the counter affidavit filed on behalf of the High Court is that though 16 vacancies were advertised, only 11 vacancies could possibly be filled up.
The reason is that only 11 candidates passed the competitive examination.
Seven out of these 11 had competed for open seats while four had competed for seats reserved for the Scheduled Castes If the four reserved seats could be filled up by the appointment thereto of candidates who appeared in the 1980 examination, there would be no difficulty in accommodating the petitioners because.
they are 10th and 11th in the merit list of 1980.
Normally, vacancies which are intended to be filled by holding an examination in any particular year, are filled from amongst candidates who had appeared for that examination.
The situation in this case is, however, complicated by the fact that two Scheduled Caste candidates, Ajaib Singh and Ram Swarup, who had appeared for the competitive examination in the previous year, that is in 1979, were wrongly denied appointments.
They had 572 passed the examination and reserved vacancies were available in which they could and ought to have been appointed.
Ajaib Singh filed a Writ Petition in this Court (No 312 of 1980) which was allowed by us by an order dated September 2, 1981.
That order reads thus : "We are informed that the Delhi High Court has decided in a full Court meeting to recommend the names of the petitioner Ajaib Singh and another candidate Ram Swarup, for appointment to the post for which they had applied, namely, the post of the Sub Judge.
The duration of the panel which was prepared for the year 1979 expired on August 16, 1980, That makes it necessary to direct that the names of the petitioner Ajaib Singh and the other candidate Ram Swarup should be included in the panel for the year 1979 and the appointment of these persons be made by the Delhi Administration despite the expiration of the period of that panel." The High Court took the particular decision in a full Court meeting because it found, and rightly so, that Ajaib Singh and Ram Swarup were denied appointments due to an error on the part of its Registry in calculating the number of reserved seats which were available in the year 1979.
The error committed by the High Court Registry is to be regretted and we hope that errors which betray lack of care in matters which make or mar a person will not be repeated.
But the question which arose for the administrative consideration of the High Court was whether the injustice done to the two candidates should be perpetuated on the specious plea that, after all, the High Court had taken a certain decision and that decision must be respected, whether it is administrative or judicial.
We are glad to find that the High Court did not stand on a false sense of prestige and rectified the injustice done to the two candidates by correcting an error for which they were not to blame.
On our part, we considered it unfair that they should be denied appointments and be made to suffer injustice for the error of the Registry in applying the reservation formula.
The counter affidavit filed on behalf of the High Court shows that the first two seats, from out of the four seats which were available to the Scheduled Caste candidates in the year 1980, have been allotted to Ajaib Singh and Ram Swarup, subject to the result of these writ petitions.
It is ironical that the rectification of injustice done to some 573 two persons should result in injustice to two others.
But, that is exactly what has happened in this case, as if to illustrate that one man 's food is another man 's poison.
The contention of the High Court is that though the petitioners were in the merit list of 11 persons for the year 1980, they could not be appointed as Sub Judges because, Ajaib Singh and Ram Swarup who were wrongly excluded from the reserved appointments of 1979 had to be accommodated in the merit list of 1980 and, after adjusting them against the reserved vacancies of 1980, no reserved vacancies were left for the candidates who were placed in the merit list of 1980.
When, in furtherance of the decision taken by the Full Court meeting of the High Court, we directed on September 2, 1981 that the two candidates of 1979 must be included in the 1979 panel and appointed as Sub Judges despite the expiry of the duration of that panel, little did we realise, and it was not so stated before us, that the appointment of those two candidates of 1979 will mean the ouster of these two candidates of 1980.
Such a strange result is to be avoided, if not at all costs, at least within the framework of the Rules and the administrative instructions governing this matter.
Justice to one group at the expense of injustice to another is perpetuation of injustice in some form or the other.
The counter affidavit of the Assistant Registrar explains the arithmetic of the High Court decision as to why the petitioners were excluded from the selections of 1980.
History has the habit of repeating itself and, with great respect, the High Court has once again fallen into an error while deciding whether, after accommodating Ajaib Singh and Ram Swarup in the 1980 selection, reserved vacancies were still available in which the petitioners could be appointed.
The explanation of the High Court may best be stated in the words of its Assistant Registrar.
He says in paragraph 21 of his counter affidavit : "It is submitted that in view of the fact that only 11 candidates qualified in the examination of which 7 were general candidates.
Therefore, in accordance with the advice contained in the D. O. letter No. 36034/19/79 Est (SCT) dated August 13, 1979 of the Department of Personnel and Administrative Reforms, as against 7 general candidates only one Scheduled Caste candidate could be taken and accordingly, 7 general candidates and 1 Scheduled Caste candidate and in addition 2 more Scheduled Caste candidates as against 2 carried forward exchangeable vacancies 574 of Scheduled Tribes were recommended for appointment to the Delhi Judicial Service.
" The counter affidavit says that the name of Dal Chand Anand, who is petitioner in Writ Petition No. 2962 of 1981, was recommended for appointment since he was 3rd amongst the four Scheduled Caste candidates but that the, said recommendation was made under an erroneous belief that a vacancy was available in which he could be appointed.
When the mistake was realised by the High Court, his name was dropped.
In so far as the other petitioner, Prem Prakash, is concerned, the explanation of the Assistant Registrar is that no vacancy was available at all in which he could be appointed since, he was 4th in the list of Scheduled Caste candidates.
The error from which the calculation of the High Court suffers is that the number of vacancies available for the Scheduled Caste candidates was fixed by it according to the number of candidates who qualified for the general seats.
The counter affidavit states expressly that the availability of vacancies for candidates of the reserved category was determined on the basis that only 7 candidates had qualified for the general seats.
This, according to us, is neither justified by the Rules and administrative instructions nor indeed does such a method of fixation of reserved vacancies disclose any acceptable basis.
16 Vacancies were advertised in the first instance out of which, 11 were for general candidates and 5 for reserved categories.
It may be assumed that the Administration is not bound to fill all the vacancies which are advertised and indeed, if the number of candidates who qualify in the competitive examination is less than the number of vacancies which are advertised, it is obvious that the vacancies which can be filled will be less than the vacancies which are advertised.
But the availability of vacancies for the reserved categories cannot be made to depend upon the accidental circumstance of how many candidates have qualified for general seats.
In the first place, that would be contrary to the instructions contained in paragraphs 4.2 and 9.2 of the Brochure of 1978.
Secondly, such a method will lead to the absurd and undesirable consequence that no candidate of the reserved category will be appointed at all, if only one or two candidates from the general category qualify in the examination.
The correct approach is to fix the number of vacancies available for the reserved candidates on the basis of the total number of vacancies which are intended to be filled at any particular point of time.
According to paragraph 575 2.1 of the Brochure, 15% of the total vacancies are required to be reserved for the Scheduled Caste candidates and 7 1/2% for the Scheduled Tribe candidates.
Therefore, the High Court could not have fixed the number of vacancies available to the reserved candidates on the basis that only 7 persons had qualified for the general seats.
If a decision was taken to fill 10 or 11 posts only, the number of reserved vacancies should have been fixed upon that basis and not on the basis that only 7 candidates had qualified for the general seats.
The High Court should have corrected its error in these two cases with the same alacrity with which it corrected its error in the case of the two Scheduled Caste candidates who had qualified in 1979.
There is an additional reason in support of the view which we are disposed to take.
On February 8, 1982 the Ministry of Home Affairs, Department of Personnel and Administrative reforms, issued a notification to the following effect : "Sub: Validity period of lists of selected candidates prepared on the basis of direct recruitment/Department competitive Examination.
The undersigned is directed to say that reference are being received from time to time from Ministries/Deptts.
enquiring as to what should be the validity period of a list of selected candidates prepared on the basis of direct recruitment or Departmental competitive Examination Normally, in the case of direct recruitment a list of selected candidates is prepared to the extent of the number of vacancies (other persons found suitable being put on a reserve list, in case some of the persons on the list of selected candidates do not become available for appointment).
Similarly, in the case of Departmental competitive Examinations the list of selected candidates has to be based on the number of vacancies on the date of declaration of results, as the examination is competitive and selection is based on merit.
A problem may arise when there is a fluctuation in the vacancies after the list of selected candidates is announced.
The matter has been carefully considered.
Normally, recruitment whether from the open market or through a 576 Departmental competitive Examination should take place only when there are no candidates available from an earlier list of selected candidates.
However, there is a likelihood of vacancies arising in future: in case, names of selected candidates are already available, there should either be no further recruitment till the available selected candidates are absorbed or the declared vacancies for the next examination should take into account the number of persons already in the list of selected candidates awaiting appointment.
Thus, there would be no limit on the period of validity of the list of selected candidates prepared to the extent of declared vacancies, either by the method of direct recruitment or through a Departmental Competitive Examination.
Once a person is declared successful according to the merit list of selected candidates, which is based on the declared number of vacancies, the appointing authority has the responsibility to appoint him even if the number of the vacancies undergoes a change, after his name has been included in the list of selected candidates.
Thus, where selected candidates are awaiting appointment, recruitment should either be postponed till all the selected candidates are accommodated or alternatively intake for the next recruitment reduced by the number of candidates already awaiting appointment and the candidates awaiting appointment from a fresh list from the subsequent recruitment or examination.
Ministry of Finance, etc.
are requested to bring the above instructions to the notice of all the appointing authorities under them for information and guidance.
Sd/ (J. K. Sarma) Director.
" It is clear from this notification that if selected candidates are available from the previous list, there should either be no further recruitment until those candidates are absorbed or, in the alternative, vacancies which are declared for the subsequent years should take into account the number of persons who are already in the list of selected candidates who are still awaiting appointment.
The notification further shows that there should be no limit on the period of validity of the list of selected candidates prepared to the extent 577 of declared vacancies.
Once a person is declared successful according to the merit list of selected candidates, the appointing authority as the responsibility to appoint him, even if the number of vacancies undergoes a change after his name is included in the list of selected candidates.
We must record our dissatisfaction at the fact that the Rules of the Delhi Judicial Service have not been amended so as to bring them in conformity with the administrative instructions and notifications which have been issued by the Ministry of Home Affairs, Department of Personnel and Administrative Reforms, from time to time.
The situation is virtually chaotic for which, we must clarify, the High Court of Delhi cannot be blamed.
It is surprising that though 13 years have gone by since the Delhi Judicial Service was established, no attention whatsoever has been paid to a matter which concerns the future of a large number of young men and women who aspire for posts in the Judiciary.
The instant case and the cases of Ajaib Singh and Ram Swarup show that the worst sufferers of this inaction are members of the Scheduled Castes and Scheduled Tribes.
Sooner the Rules are amended, easier will it be for the High Court to administer and superintend the affairs of the subordinate Judiciary with the object of achieving the ideals enshrined in Articles 16 (4), 38 and 46 of the Constitution.
Though the Rules ought to be amended, that does not mean that administrative instructions can be ignored by the High Court until that is done.
The Assistant Registrar says in paragraph 9 of his counter affidavit that "administrative instructions cannot be allowed to prevail over the statutory rules.
" That would be correct provided that the administrative instructions are contrary to the statutory rules.
In this case, Rule 28 itself says that "Appointments made to the service by competitive examination shall be subject to order regarding special representation in the service for Scheduled Castes and Scheduled Tribes issued by the Central Government from time to time.
" Therefore, far from their being any inconsistency between the statutory rules and the administrative instructions it is clear that the two have to be read together.
These writ petitions must therefore succeed.
Our reasons for allowing the petitions may be summed up thus: In the first place. , in the process of remedying injustice which was done to the two scheduled caste candidates of 1979, no injustice can be caused to the petitioners who had qualified for the reserved seats in the exami 578 nation held in 1980.
Secondly, the quota of seats available for reserved candidates cannot be made to depend on the fortuitous circumstance as to how many candidates have qualified for the general seats.
The reserved quota must be fixed on the basis of the total number of vacancies which are to be filled at a given point of time.
Thirdly, the notification of 1982 is good authority for adjusting the petitioners against the reserved vacancies for the year 1980.
The statutory rules and administrative instructions have to be read together by reason of Rule 28.
We accordingly direct that the High Court and the Delhi Administration will take expeditious steps for notifying the appointments of the petitioners, Dal Chand Anand and Prem Prakash, to the Delhi Judicial Service.
For purposes of seniority the former will rank higher than the latter because that was their orders of seniority in the original merit list of 1980.
Since they have not actually worked as Sub Judges during the intervening period, they will not be entitled to any remuneration for that period.
They will however rank for seniority in the Delhi Judicial Service on the footing that they were appointed when they ought to have been appointed, that is to say, when the other candidates were appointed on the basis of the result of the 1980 examination.
In all other respects, including probation, their appointment will be subject to the provisions of the relevant rules and regulations.
In the result, the writ petitions are allowed to the extent indicated above.
Respondents 1 and 2 will pay to the petitioners the costs of these petitions.
M.L.A. Petitions allowed.

Output:
Rule 18 of the Delhi Judicial Service Rules, 1970 (for short, the Rules) says that the Selection Committee shall prepare a list of candidates in order of merit and forward it to the Administrator for filling the vacancies then existing or any vacancy that may occur within a period of one year of the preparation of the list.
Rule 28 of the Rules lays down that appointments made to the Service by competitive examination shall be subject to order regarding special representation in the Service for Scheduled Castes and Scheduled Tribes issued by the Central Government from time to time.
Paragraph 2.1 of the Brochure on "Reservation for Scheduled Castes and Scheduled Tribes in Services" issued by the Central Government requires that 15 per cent of the total vacancies are to be reserved for Scheduled Caste candidates and 71/2 for Scheduled Tribe candidates.
Paragraph 4.2 of the Brochure prescribes that the actual number of vacancies to be reserved for Scheduled Castes and Scheduled Tribes in any recruitment should be determined on the basis of points in the roster and also taking into account the reservations brought forward from the previous year.
On 8th February, 1982, the Government of India issued a Notification declaring that there would be no limit on the period of validity of the list of selected candidates prepared to the extent of declared vacancies either by the method of direct recruitment or through a departmental competitive examination and that once a person is declared successful according to the merit list of selected candidates which is based on the declared number of vacancies, the appointing authority has the responsibility to appoint him even if the number of vacancies undergoes a change after his name has been included in the list of selected candidates.
565 In 1980, Respondent No. 3, High Court of Delhi notified 16 vacancies of Sub Judges for being filled through competitive examination in the Delhi Judicial Service 11 vacancies were for open candidates, 2 for Scheduled Castes and 3 for Scheduled Tribes which included two carried forward vacancies also.
The carried forward vacancies were interchangeable in the sense that if candidates from Scheduled Tribes were not available, the vacancies could be added to the quota reserved for Scheduled Castes.
The petitioners, Dal Chand Anand and Prem Prakash, who were members of Scheduled Caste secured 10th and 11th position respectively in the merit list of 11 candidates who qualified the examination and viva voce test held in pursuance of the above notification.
They were Serial No. 3 Scheduled Caste candidates.
Since the petitioners did not figure in the final list of candidates selected by the Administrator, Respondent No. 2, they filed present writ petitions under article 32 of the Constitution to challenge their exclusion and non appointment.
Respondent No. 3 contended (1) that the petitioners were excluded from the selections of 1980, on account of the fact that only 11 candidates qualified in the examination of which 7 were general candidates and therefore as against 7 general candidates only 1 Schedule Caste candidate could be appointed; and (ii) That though the petitioners were in the merit list of 11 persons for the year 1980, they could not be appointed as Sub Judges because two Scheduled Caste candidates who were wrongly excluded from the reserved appointments of 1979 had to be accommodated in the merit list of 1980 and after adjusting them against the reserved vacancies of 1980, no reserved vacancies were left for the petitioners.
Allowing the Writ Petitions, ^ HELD: (1) The error from which the calculation of the High Court suffers is that the number of vacancies available for the Scheduled Caste candidates was fixed by it according to the number of candidates who qualified for the general seats.
This is neither justified by the Rules and administrative instructions nor indeed does such a method of fixation of reserved vacancies disclose any acceptable basis.
The quota of seats available for reserved candidates cannot be made to depend on the fortuitous circumstance as to how many candidates have qualified for the general seats, since that would be contrary to the instructions contained in paragraph 4.2 and 9.2 of the Brochure of 1978 and such a method will also lead to the absurd and undesirable consequence that no candidate of the reserved category will be appointed at all if only one or two candidates from the general category qualify in the examination.
The correct approach is to fix the number of vacancies available for the reserved candidates on the basis of the total number of vacancies which are intended to be filled at any particular point of time.
Therefore, the High Court could not have fixed the number of vacancies available to the reserved candidates on the basis that only seven persons had qualified for general seats.
If a decision was taken to fill 10 or 11 posts only, the number of reserved vacancies should have been fixed upon that basis and not on the basis that only 7 candidates had qualified for the general seats.
[574D E, G H, 575A B] 566 (2) In the process of remedying injustice which was done to the 2 Scheduled Caste candidates of 1979, no injustice can be caused to the petitioners who had qualified for the reserved seats in the examination held in 1980.
Such a strange result is to be avoided if not at all costs, at least within the framework of the Rules and the administrative instructions governing the matter.
Justice to one group at the expense of injustice to another is perpetuation of injustice in some form or the other.
[577H, 57 D] (3) The statutory rules and administrative instructions have to be read together unless they are contrary to each other.
In the instant case, since there is no in consistency between the statutory rules and the administrative instructions, it is clear that the two have to be read together by reason of Rule 28.
Though the Rules of the Delhi Judicial Service have not been amended so as to bring them inconformity with the administrative instructions and notifications which have been issued by the Ministry of Home Affairs, Department of Personnel and Administrative Reforms, from time to time, that does not mean that administrative instructions can be ignored by the High Court until that is done.
Therefore, the Notification of 1982 is good authority for adjusting the petitioners against the reserved vacancies for the year 1980, since it is clear from the Notification (i) that if selected candidates are available from the previous list, there should either be no further recruitment until those candidates are absorbed or, in the alternative, vacancies which are declared for the subsequent years should take into account the number of persons who are already in the list of selected candidates who are still awaiting appointment and (ii) that there should be no limit on the period of validity of the list of selected candidates prepared to the extent of declared vacancies and once a person is declared successful according to the merit list of selected candidates, the appointing authority has the responsibility to appoint him, even if the number of vacancies undergoes a change after his name is included in the list of selected candidates.
[577G, B D, 576G H; 577A]


Input:
Civil Appeal No. 245 (N) of 1971.
Appeal by Certificate from the Judgement and Order dated the 9th February 1979 of the Madhya Pradesh High Court at Jabalpur in Miscellaneous Petition No. 361 of 1967.
Mukul Rohtagi and A. G. Ratnaparkhi for the Appellants.
Ravinder Bana and A. K Sanghi for the Respondents The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by certificate is directed against a judgment of the Madhya Pradesh High Court dismissing the writ petition filed by the appellants against certain orders of the Revenue Officers under the provisions of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (for short, 'Abolition Act ') which came into force sometime in the year 1951.
By virtue of s.6 of the Abolition Act all transfers made by proprietors at any time after 16th March 1950 were deemed to be void unless declared valid by the Collector on a proper application made to him.
The transferees, in view of the aforesaid provisions, filed applications before the Collector in 1964 who validated the transfers by his order dated 6th June 1964.
Against the order of the Collector a revision was taken by the Commissioner in exercise of his powers under section 50 of the M. P. Land Revenue Code, 1959 (hereinafter referred to as the 'Code ').
The transferees objected to the jurisdiction of the Commissioner on the ground that he had no power to revise the order of the Collector.
This contention was rejected by the Commissioner and hence, a revision was taken to the Board of Revenue which confirmed the view of the Commissioner.
It was against this order that the appellants filed a writ petition 802 before the High Court assailing the orders of the Commissioner as also the Board of Revenue.
The learned counsel for the appellants contended that any order passed under s.6 of the Abolition Act was not revisable under the Code because the Abolition Act was a Code or a law complete in itself and conferred no powers of revision or appeal outside the Abolition Act.
Hence, it was contended, the Commissioner had no jurisdiction to entertain suo moto revision.
In the second place, it was argued that under section 84 of the Abolition Act appeals were provided against all orders passed by Revenue Officers and since there was a right of appeal provided under the Act, no revisional power could be exercised either by the commissioner or by the Board of Revenue under the Code It was also faintly urged before the High Court that the Revenue Officers when exercising powers under the Abolition Act were not exercising the powers as Revenue Officers but as a persona designata under the Abolition Act In other words, the contention raised before the High Court, which was repeated before us, was that the Revenue Officers had a dual capacity (1) under the Abolition Act, and (2) under the Code.
The High Court, however, rejected the contention and, in our opinion, rightly.
A perusal of the schemes of the Abolition Act and the Code clearly indicates that the two Acts were in pari materia and the revenue officers were exercising powers under both the Acts cognately.
There was no clearcut distinction between a Revenue Officer acting under the Abolition Act and acting under the Code.
This being the position, it is manifest that the revisional powers could be exercised by the Revenue Officers under 9 50 of the Code and even under the Abolition Act as well.
We find ourselves in complete agreement with the view taken by the High Court on this point and which was also not seriously challenged before us.
The sheet anchor of the contention of the learned counsel for the appellants before us was that even assuming that the two statutes (Abolition Act and the Code) were statutes in pari maieria, they possess two clearcut and separate powers, that is to say, no suo moto revision could lie to the Revenue officers unless a revision or appeal was filed before the Commissioner by the party.
It is not disputed in this case that the Commissioner Board of Revenue passed the order in exercise of their revisional powers.
It would, however, appear that under the provisions of the Abolition 803 Act as also the Code, both the Commissioner and the Board were appellate as also revisional authorities.
Thus, when two powers were conferred on the said officers in a sort of a combined capacity, it cannot be said that merely because the formality of filing a regular appeal before the Commissioner or the Board was not adopted, a suo moto revision would not lie.
The contention could have some substance if there would have been any statutory embargo on the hierarchy of the Officers mentioned above to entertain any revision against an order passed by one authority without filing an appeal before it.
In the instant case, we find that both the Commissioner and the Board of Revenue had appellate as also revisional powers.
Both these powers being conferred on the same authority, the difference between the exercise of a revision or appeal was a mere idle formality and was of no consequence.
The result is that all the contentions raised by the appellants fail and the appeal is dismissed but in the circumstances of the case without any order as to costs.
M.L.A Appeal dismissed.

Output:
The Collector validated certain transfers on the applications of appellants U/5.
6 of the M. P. Abolition Act 1950 but a revision was taken by the Commissioner section 50 of the M. P. Land Revenue Code 1959 (for short, the Code) against the order Or the Collector.
The appellants ' contention before the Commissioner that he had no jurisdiction or power to revise the order of the Collector was rejected.
The Board of Revenue in the revision and the High Court in a writ petition filed by the appellants confirmed the view of the Commissioner.
Hence this appeal.
The appellants contended (i) that the order of the Collector was not revisable under the Code because the Abolition Act was a Code or a law complete in itself and conferred no powers of revision or appeal outside the Abolition Act and therefore the Commissioner had no jurisdiction to entertain suo moto revision; (ii) that since there was a right of appeal under sec.
84 of the Abolition Act, no revisional power could be exercised either by Commissioner or by the Board of Revenue under the Code; and (iii) that even assuming that the Abolition Act and the Code were statutes in pari materia, they possess two clear cut and separate powers, that is to say, no suo moto revision could lie to the Revenue Officers unless a revision or appeal was Sled before the Commissioner by the party.
Dismissing the appeal, to this Court ^ HELD: (1) A perusal of the schemes of the Abolition Act and the Code clearly indicates that the two Acts were in pari materia and the revenue officers were exercising powers under both the Acts cognately.
There was no clearcut distinction between a Revenue Officer acting under the Abolition Act and acting under the Code.
This being the position, it is manifest that the revisional powers could be exercised by the Revenue Officers under section 50 of the Code and even under the Abolition Act as well.
[802D E] 801 (2) Under the provisions of, the Abolition Act as also the Code, both the Commissioner and the Board were appellate as also revisional authorities.
Thus, when two powers were conferred on the said officers in a sort of a combined capacity, it cannot be said that merely because the formality of filing a regular appeal before the Commissioner or the Board was not adopted, a suo moto revision would not lie [802H; 813A B] In the instant case, both the Commissioner and the Board of Revenue had appellate as also revisional powers Both these powers being conferred on the same authority, the difference between the exercise of a revision or appeal was a mere idle formality and was of no consequence [803C D]


Input:
ivil Appeal No. 143 of 1951.
Appeal by special leave from the judgment and decree dated 23rd March, 1950, of the High Court of Judicature at Patna (Reuben and Jamuar JJ.) in appeal from Original Decree No. 206 of 1946 arising out of a decree dated 31st January, 1946, of the Subordinate Judge at Patna in Title Suit No. 55/4 of 1943 45.
Saiyid Murtaza Fazl Ali for the appellants.
N.C. Chatterjee (A. N. Sinha, with him)for the respond ents Nos. 1 to 9.
B.K. Saran for the respondents Nos.
11 to 16.
April 14.
The Judgment of the Court was deliv ered by CHANDRASEKHARA AIYAR J.
This is an appeal by the defendants from a decree of the Patna High Court reversing a decree of the Subordinate Judge 's Court at Patna, and de creeing the plaintiffs ' suit for possession against the defendant first party who may be called for the sake of convenience as 'the Gopes '.
The lands were khudkhasht lands, partly belonging to the plaintiffs first party and partly belonging to Mussammat Anaro Kuer, from whom the plaintiffs second and third par ties trace title.
The ancestors of plaintiffs first party gave on 28 9 1899 an ijara with possession to one Lakhandeo Singh an ancestor of the defendant second party under Exhib it I (b) for a term 777 of six years from 1307 Fasli to 1312 Fasli for Rs. 540.
The poshgi money was to be repaid in one lump sum at the end of Fasli 1312.
If there was no redemption then the ijara was to continue in force till the money was repaid.
Mussammat Anaro Kuer gave her share in ijara to the same Lakhandeo Singh orally on 10th June, 1905, for a period of three years for Rs. 542.
Lakhandeo Singh, who is represented now by the defendant second party, made a settlement of the land thus got by him (8.26 acres or 13 bighas in all) with one Ram Lal Gope an ancestor of the defendant first party for a period of three years from Fasli 1315 to Fasli 1318.
There was a patta in favour of the tenant and a kabuliyat in favour of the landlord.
This was in 1908.
The mortgage was redeemed in June 1942 by payment in proceedings under section 83 of the Transfer of Property Act, When the plaintiffs went to take possession, they were resisted by the Gopes (defendant first party), and after unsuccessful criminal proceedings, the plaintiffs filed the present suit.
The Subordinate Judge dismissed it, holding that the Gopes were raiyats having acquired permanent occupancy rights in the lands as the result of the settlement by the mortgagee, Lakhandeo Singh.
On appeal the High Court set aside this decision and gave the plaintiffs a decree for possession on the finding that the defendants were not raiyats and had no permanent rights of occupancy.
This court granted to the defendants special leave to appeal.
The suit was in the alternative for recovery of the value of the lands as compensation or damages from the defendant second party in case it was found that the defendant first party could not be ejected.
The trial court decreed this alternative claim and awarded to the plaintiffs compensation at the rate of Rs. 200 per bigha.
The defendant second party carried the matter in appeal to the High Court and succeeded.
But we have nothing to do with this matter in the present appeal.
At the trial, the plaintiffs alleged and maintained that the lands were their zirat lands within the meaning SUPREME 778 of section 116 of the Bihar Tenancy Act and that the defend ant first party could acquire no rights of occupancy in the same.
The Subordinate Judge found against this contention and held that they were khud kasht or bakasht lands of the proprietor, in which rights of occupancy can be acquired He negatived the plea of the defendants that they were their ancestral raiyati lands.
He also held that there was no collusion between the mortgagee Lakhandeo Singh and Ram Lal Gope in the matter of settlement of lands.
It is on the basis of these findings which were accepted by both the parties that the hearing of the appeal proceeded before the High Court.
It was held by the Privy Council in Bengal Indigo Company vs Roghobur Das(1) that "a zuripeshgi lease is not a mere contract for the cultivation of the land at a rent, but is a security to the tenant for the money advanced".
They observed, speaking of the leases before them, that "the leases in question were not mere contracts for the cultiva tion of the land let; but that they were also intended to constitute, and did constitute, a real and valid security to the tenant for the principal sums which he had advanced, and interest thereon.
The tenants ' possession under them was, in part at least, not that of cultivators only, but that of creditors operating repayment of the debt due to them, by means of their security.
" These words apply to the ijara deed before us; its dominant intention was to provide a security for the loan advanced and not to bring into existence any relationship of landlord and ten ant.
The general rule is that a person cannot by transfer or otherwise confer a better title on another than he himself has.
A mortgagee cannot, therefore, create an interest in the mortgaged property which will enure beyond the termina tion of his interest as mortgagee.
Further, the mortgagee, who takes possession of the mortgaged property, must manage it as a person of ordinary prudence would manage it if it were his own; and he must not commit any act which is de structive (1) 779 or permanently injurious to the property; see section 76, sub clauses (a) & (e)of the Transfer of Property Act.
It follows that he may grant leases not extending beyond the period of the mortgage; any leases granted by him must come to an end at redemption.
A mortgagee cannot during the subsistence of the mortgage act in a manner detrimental to the mortgagor 's interests such as by giving a lease which may enable the tenant to acquire permanent or occupancy rights in the land thereby defeating the mortgagor 's right to khas possession; it would be an act which would fall within the provisions of section 76, subclause (e), of the Transfer of Property Act.
A permissible settlement by a mortgagee in possession with a tenant in the course of prudent management and the springing up of rights in the tenant conferred or created by statute based on the nature of the land and possession for the requisite period is a different matter altogether.
It is an exception to the general rule.
The tenant cannot be ejected by the mortgagor even after the redemption of the mortgage.
He may become an occupancy raiyat in some cases and a non occupancy raiyat in other cases.
But the settle ment of the tenant by the mortgagee must have been a bona fide one.
This exception will not apply in a case where the terms of the mortgage prohibit the mortgagee from making any settlement of tenants on the land either expressly or by necessary implication.
Where all the zamindari rights are given to the mortga gee, it may be possible to infer on the proper construction of the document that he can settle lands with tenants in the ordinary course of management and the tenants might acquire certain rights in the land in their capacity as tenants.
In the case of Manjhil Lal Biswa Nath Shah Deo vs Shaikh Mo hiuddin(1), there was a bona fide settlement of mortgaged rayati land by the mortgagee with tenants and it was held that the mortgagor was not entitled to evict them after redemption.
The earlier decision of Babu Bhairo Nath Ray vs Shanke Pahan(2), related to bakasht lands, and (1) (2) Pat.31.
780 there was no provision in the zuripeshgi lease restricting the power of the mortgagee lessee as regards settlement of tenants.
Khudkasht lands and bakasht lands are really in the nature of raiyati lands which come into the possession of the proprietor by surrender, abandonment or purchase.
In the present case.
we have the following clause in the ijara deed: "It is desired that the ijaradar should enter into possession and occupation of the share let out in ijara (being the khudkasht land under his own cultivation), culti vate them, pay 2 annas as reserved rent year after year to us, the executants, and appropriate the produce thereof year after year on account of his having the ijaradari interest.
" This term disentitles the mortgagee from locating tenants on the land mortgaged.
Ram Lal Gope, the grandfather of the defendants first party, who executed the kabuliat in 1908 must have known of the title of Lakhandeo Singh the mortga gee and the terms under which he held the lands under the registered zuripeshgi ijara deed and this is most probably why the tenant not only took the lease for a period of 3 years, but expressly undertook to give up possession over the thika lands on the expiry of the period of lease without urging any claim on the score that the lands were his old kasht lands.
His kabuliat (Exhibit 11) in fact refers to Lakhandeo Singh 's ijaradari interest.
In view of these facts, the learned Judges of the High Court stated that they were not prepared to hold that the settlement was a bona fide one or the mortgagee was within his rights in settling these lands.
Strong reliance was placed for the appellants on the Full Bench decision Binad Lal Pakrashi and Others vs Kalu Pramanik and Others (1) where it was held that a person inducted into possession of land as a raiyat even by a trespasser became a non occupancy raiyat within the meaning of section 5, sub section, 2 of the Bengal Tenancy Act and was protected from ejectment.
But this decision has been subsequently (1) Cal.
781 explained away in several cases as based on the proposition that the rights must have been bona fide acquired by them from one whom they bona fide believed to ' have the right to let them into possession of the land.
Such, however, is not the case here, in view of the recitals in the ijara deed in favour of Lakhandeo Singh and the kabuliat by Ram Lal Gope.
Sections 20 and 21 of the Bihar Tenancy Act were re ferred to by the learned counsel for the appellants in the course of his arguments and he pointed out that the land in this case was held ' continuously by his clients and their predecessors from 1908 to 1942, when they were sought to be ejected.
For these sections to apply, we must be in a position to hold that the appellants were "settled raiy ats".
"Raiyals" is defined in sub clause 2 of section 5 as meaning "primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself or by members of his family . " Sub clause 3 provides that a person shall not be deemed to be a raiyat unless he holds land either immediately under a proprietor or immediately under a tenure holder.
Lakhandeo Singh was not a "proprie tor" by which term is meant a person owning, whether in trust or for his own benefit, an estate or part of an es tate: he was only a mortgagee.
Nor was he a tenure holder or under tenureholder, as he does not comply with the defi nition given in sub clause (1) of section 5, namely, a person who had acquired from a proprietor or from another tenure holder a right to hold land for the purpose of col lecting rents, or for the purpose of bringing the land under cultivation by establishing tenants on it.
Such proof as there is in this case only goes to show that the lands were under the cultivation of the plaintiffs and that they were made over to the possession of the mortgagee so that he might cultivate them himself.
Hence, Ram Lal Gope could not claim that he was a settled raiyat of the village and that under the statute he secured occupancy rights in the lands Which he took on lease from Lakhandeo Singh.
782 Lastly, it was urged that the ijara by Mst.
Anaro Kuer was admittedly an oral transaction and there was no proof of any prohibition against the settlement with tenants so far as her share (3.97 acres) was concerned and that the rights of the parties as regards this area would stand on a differ ent footing from the rights in respect of the 4 acres and 29 cents belonging to the plaintiff first party.
This point was not taken in the courts below where the two ijaras given to Lakhandeo Singh were dealt with as if they were part and parcel of one and the same transaction, the rights and liabilities, whatever they were, being common to both.
We cannot allow the point to be taken now.
The result is that the High Court 's decree is con firmed and the appeal is dismissed with costs of the plain tiffs respondents.
There will be no order as to costs of the other respondents.
Appeal dismissed.
Agent for the respondents Nos.
1 to 9: M.M. Sinha.
Agent for the respondents Nos. 11 to 16: K.L. Mehta.

Output:
As a general rule a person cannot transfer or otherwise confer a better title on another than he himself has and a mortgagee cannot therefore create an interest in mortgaged property which will enure beyond the termination of his interest as mortgagee.
Further, a mortgagee cannot during the subsistence of the mortgage act in a manner detri mental to the mortgagor 's interests, such as by giving a lease which may enable the tenant to acquire permanent occupancy rights in the land, thereby defeating the mortga gor 's right to khas possession.
A permissible settlement by a mortgagee in possession with a tenant in the course of prudent management and the springing up of rights in the tenant conferred or created by statute based on the nature of the land and possession for the requisite period is an exception to the general rule, but to fall within this exception the settlement of the tenant by the mortgagee must have been a bona fide one.
The exception will not apply in a case where the terms of the mortgage prohibit the mortgagee from making any settle ment of tenants on the land either expressly or by necessary implication.
Where a zuripeshgi ijara deed contained the following clause: "It is desired that the ijaradars should enter into possession and occupation of the share let out in ijara (being the kkudkasht land under his own cultivation), culti vate them, pay 2 as.
as reserved rent year after year to us, the executants, and appropriate the produce thereof year after year on account of his having the ijara interest" and the kabuliat executed by the tenant to whom the lands were leased by the mortgagee for a period of 3 years referred to the ijara deed and contained an express provision that he (the tenant) would give up possession of the tika land on the expiry of the lease without urging any claim on the score that the lands were his kasht lands: Held, confirming the decision of the High Court, that the settlement was not a bona fide one and the successors of the tenant (the de fendants) did not acquire permanent rights of occupancy in 101 776 the demised lands under the Bihar Tenancy Act even though the lands had been in the occupation of the tenant and his successors for over 30 years after the expiry of the lease.
Held further, that the defendants could not acquire occupancy rights under sections 20 and 21 of the Bihar Tenancy Act as the mortgagee was neither a "proprietor" nor a "tenure holder" or "under tenure holder" and the tenant and his successors were not, therefore, "settled raiyats" within the meaning of section 5, cl.
(2), of the said Act.
Manjhil Lal Biswanath Shah Deo.
vs Shaikh Mohiuddin (I.L.R. Babu Bairo Nath Ray vs
Shanke Pahan (I.L.R. 8 Pat.
31) and Binda Lal Pakrashi and Others vs Kalu Pramanik and Others (I.L.R. distinguished.


Input:
Appeal Nos.4538 39 of 1991.
From the Judgment and Order dated 23.3.1990 of the Hyderabad High Court in C.C.A. Nos. 54 & 55 of 1987.
Ashok K.Gupta for the Appellant.
Ms. Suruchi Agrawal and T.V.S.N.Chari for the Respondents The Judgment of the Court was delivered by RANGANATH MISRA, CJ.
Special leave granted.
By notifica tion dated 12th January, 1973, under Section 4(1) of the Land Acquisition Act, 1894 as modifiednby Notification of 27th July, 1978, 26 acres and 26 gunthas of land located within the Hyderabad District was notified for acquisition for the Bhagyanagar Urban Development Authority.
A similar notification was published on 14th June, 1979 for acquisi tion of two acres and 29 gunthas.
The Land Acquisition Officer made his award for both the properties on 10 th June, 1982 fixing the market value at Rs. 42,000 per acre with five per cent deduction towards development cost.
Being dissatisfied with the awards passed by Land Acquisition Officer, a reference was sought and made under section 18 of the Act.
The Claimants demanded compensation at the rate of Rs. 200 per square yard.
The Civil Court fixed the market value at Rs.200 per sq.yd.
as demanded but directed deduc tion of 20 per cent towards development charges.
The Land Acquisition Officer carried appeals against the escalation of compensation and the present appellants preferred cross objections.
The High Court reassessed the entire evidence and came to hold.
"Today the position of the acquired lands is altogether different.
It is common knowledge that the prices started soaring high from 1980 onwards and this part of Hyderabad, namely, 377 Gaddiannaram started developing from 1980 and today it is undoubtedly one of the important areas in Hyderabad.
But we must consider the position as it stood in 1978 and 1979.
Taking all the circumstances into account, we think it reasonable to fix the market value at Rs. 3 lakhs per acre.
The Civil Court had given a deduction of 20 per cent towards development charges.
The learned Advocate General contended that deduction should be enhanced to 33 1/3 per cent.
We do not think that any interference is called for in this regard.
The lands are abutting the highway.
Evidence shows that there are roads on three sides.
Hence.
we maintain the deduction of 20 per cent and if so done, the market value comes to Rs.2,40,000 which works out at Rs. 50 per sq.yd.
The Trial Court has awarded Rs.200 per sq.yd with a deduction of 20 per cent which comes to Rs. 160 per sq.yd.
We are unable to sustain the order of the Court below on any justifiable grounds.
We accordingly set aside the judgment and decree and determine the market value at the rate of Rs.50 per sq.yd . " It is against this deduction in compensation that the claimants have come to this court in appeal.
The Collector had adopted a deduction of five per cent.
The referee court adopted the deduction at 20 per cent and the High Court rejecting the claim of the Advocate General that deduction should be one third put it at one fifth.
We find that the High Court did not go by the percentage of deduction.
In fact, according to the High Court and particu larly as the portion we have extracted above would show the appropriate market value per square yard was Rs. 50 and if a 20 per cent deduction from out of Rs. 3 lakhs per acre was accepted, it worked out that way.
The Judgment of the High Court gives us the impression that in fixing the compensa tion.
the High Court did not go by the percentage of deduc tion but kept in view the market value of the land at the time of the notification under section 4(1) of the Act.
There is clear material and the High Court has accepted it that price went up in the area after 1980.
The notifications are within a range of a year or two from that time.
There fore, the valuation after 1980 is not the guideline.
Having looked into the material accepted by the High Court, we are not in a position to disturb the finding recorded by the High Court.
The appeals are accordingly dismissed.
No costs.
R.P. Appeals dismissed.

Output:
Certain plots of land of the appellant were acquired by notifications dated 12.1.1978, 27.7.1978 and 14.6.1979 issued under s.4(1) of the Land Acquisition Act, 1894.
The Land Acquisition Officer by an order dated 10.6.1982 fixed the market value at Rs. 42,000 per acre with 5 per cent deduction towards development cost.
In appellant 's appeal the Civil Court fixed the market value at Rs.200 per sq. yard with a deduction of 5 per cent towards the development charges.
On the appeal by the land acquisition officer, the High Court reassessed the entire evidence and fixed the market value at Rs.3 lakh per acre holding that if a deduction of 20 per cent was allowed, the market value would come to Rs.2,40,000 per acre which worked out at Rs.50 per sq.yard, and accordingly set aside the judgment and decree, and determined the market value at Rs.50 per sq.yard.
Dismissing the appeals of the appellant claimant this Court, HELD: 1.
In fixing the compensation, the High Court did not go by the percentage of deduction but kept in view the market value of the land at the time of the notification under s.4(1) of the Land Acquisition Act, 1894.
[p. 377 F] 2.
There was clear material and the High Court accepted it that price went up in the area after 1980.
The notifica tions were within a range of a year or two from that time.
Therefore, the valuation after 1980 was not the guideline.
[ p. 377 F G] 376 3.
In the instant case, the Collector had adopted a deduction of five per cent.
The referee Court adopted the deduction at 20 per cent and the High Court rejecting the claim of the Advocate General that deduction should be one third put it at one fifth.
The High Court did not go by the percentage of deduction.
The appropriate market value fixed by the High Court per sq.
yard was Rs 50 and if a 20 per cent deduction from out of Rs.3 lakhs per acre was accepted, it worked that way.
The finding of the High Court need not be disturbed.
[p. 377 E G]