Input:
Appeals Nos. 589 to 590 of 1964.
Appeal by special leave from the judgment and order dated October 12, 13, 1961 of the Bombay High Court in Income tax Reference No. 56 of 1956.
K. N. Rajagopal Sastri, J. B. Dadachanji, for the appellants.
A. V. Viswanatha Sastri, R. Ganapathy Iyer, R. H. Dhebar and R. N. Sachthey, for the respondent.
The appellant held 1000 shares in an investment company styled Home Mehta and Sons Ltd. (hereinafter called 'the Company ') which carried on the business of investing in shares in companies registered in British India and in the former Indian States.
Dividends from the British Indian companies were received by the Company at its registered office at Bombay, and dividends from the Indian States ' companies were received by the Company at its registered office at Billimora in the State of Baroda.
In the calendar years 1948 and 1949 the appellant received at Billimora Rs. 65,000 and Rs. 2,10,000 respectively as dividend in respect of shares held by it in the Company.
The 2nd Income tax Officer, A I Ward, Bombay, upheld the claim of the appellant that its dividend income received from the Company 581 at Billimora had accrued or arisen in the Baroda State and as the income was not brought into British India, it was exempt from liability to tax by virtue of section 14(2)(c) of the Income tax Act.
The Commissioner of Income tax, Bombay held that the income accrued or arose to the appellant in Bombay where the dividend was declared, and was on that account liable to be assessed under the Income tax Act, 1922.
The Commissioner accordingly directed the Income tax Officer to pass orders imposing tax on the dividend income received by the appellant from the Company.
On appeal, the Income tax Appellate Tribunal held that the dividend income accrued or arose at Billimora and not at Bombay, but by reason of the definition of "taxable territories" the income which accrued at Baroda attracted liability to tax under the Income tax Act and did not qualify for rebate under paragraph 6 of the Merged States (Taxation Concessions) Order, 1949.
The following questions were referred by the Tribunal under section 66(1) of the Indian Income tax Act, 1922, to the High Court: of Bombay for its opinion "(1) Whether on the above facts and circumstances of the case the assessee is entitled to rebate equal to the difference between the British Indian rate and Baroda State rate in respect of the dividend income ? (2) Whether on the facts and circumstances of the case the dividend income accrued or arose to the assessee at Bombay ?" The High Court held, following its earlier judgment in Mrs., Kusumben D. Mahadevia, Bombay vs The Commissioner of Income tax, Bombay City, Bombay(1) that the Merged States (Taxation Concessions) order, 1949 did not apply to the income of a resident assessee and therefore the first question must be answered in the negative.
The High Court declined to answer the second question.
With special leave granted by this Court, the appellant has appealed to this Court.
Income received by the Company from its transactions in the Indian States was retained at its office in Billimora and dividend ' declared out of that income was paid to the appellant at the registered office in the State of Baroda.
This dividend it is common ground was not brought into British India.
To appreciate the claim that the income qualifies for rebate under paragraph 6 of the Merged States (Taxation Concessions) Order, 1949, the (1) Income tax Ref.
No. 28 of 1955 decided, on February 20, 1956 (unreported).
p. C.I`./66 7 5 82 relevant statutory developments in tax laws to effectuate the merger of the former Indian States since August 15, 1947 may be briefly set out.
Under section 14(2) (r.) of the Income tax Act, added by Act 23 of 1941 and amended by Act 22 of 1947, it was enacted that : "The tax shall not be payable by an assessee .
in respect of any income, profits or gains accruing or arising to him within an Indian State unless such income, profits or gains are received or deemed to be received in or are brought into British India in the previous year by or on behalf of the assessee, or are assessable under section 12B or Section 42.
" By paragraph 3 of the States ' Merger (Governors ' Provinces) Order, 1949, it was provided that the States specified in Sch.
11 shall, as from August 1, 1949, be administered in all respects as if they formed part of the Provinces specified in the Schedule, and by paragraph 4 all the laws in force in the merged States or in any part thereof immediately before August 1, 1949, were to continue in force until repealed, modified or amended by a competent Legislature or other competent authority.
The State of Baroda was one of the States specified in the Schedule and it was to be administered as if it formed part of the Province of Bombay.
The Indian Income tax Act was applied to the merged States by section 3 of the Taxation Laws (Extension to Merged States and Amendment) Act 67 of 1949 with retrospective effect from April 1, 1949, and by section 7 corresponding laws relating to income tax in the merged States were repealed.
It was provided that if immediately before the 26th day of August, 1949, there was in force in any of the merged States any law relating to income tax, supertax or business profits tax, that law shall cease to have effect except for the purposes of the levy, assessment and collection of income tax and super tax in respect of any period not included in the previous year for the purposes of assessment under the Indian Income tax Act, 1922, as extended to that State by section 3, or, as the case may be, the levy, assessment and collection of business profits tax for any chargeable accounting period ending on or before the 31st day of March, 1948, and for any purposes connected with such levy, assesssment or collection.
By the application of Act 67 of 1949, and the repeal of laws corresponding to those applied to the merged States by section 3, residents in former British India and in the merged States were sought to be treated equally.
But the result was a sudden imposition of high rates of taxation under the Indian Income tax Act read with the appro 583 priate Finance Acts upon the residents of the merged States.
With a view to cushion the impact, the Central Government in exercise of the powers conferred by section 60A of the Indian Income tax Act granted certain exemptions from and reductions in the rates of tax and made certain other modifications in the tax structure in its application to the merged States.
By paragraph 3 (i) of the Merged States (Taxation Concessions) Order, 1949 the expression "Act" was defined as meaning the Taxation Laws (Extension to Merged States and Amendment) Act 67 of 1949.
Paragraphs 4, 5, 6 and 6A of the Order as amended or added by the notification dated March 11, 1949, provided : 4. "The provisions of paragraphs 5, 6, 9, 10 and 11 of this Order shall apply to only so much of the income, profits and gains included in the total income of an assessee as would, had he been resident in British India have been exempt under clause (c) of subsection (2) of section 14 of the Indian Income tax Act, 1922, if the Act had not been passed." 5. "(1) The income, profits and gains of an) previous year ending after the 31st day of March, 1948, which is a previous year (i) for the merged State assessment year 1948 49, or (ii) for the merged State assessment year 1949 50,shall be assessed under the Indian Income tax Act, .1922, if, and only if, such income, profits and gains have not, before the 1st day of August, 1949, been assessed under the State law.
(2) Where the income, profits and gains referred to in sub paragraph (1) have not been assessed under the State law, they shall be assessed under the Indian Income tax Act, 1922, and the tax payable thereon shall be determined as hereunder (i) the tax on the amount of such income, profits and gains included in the total income shall be computed at the Indian rate of tax; (ii) the amount of such income, profits and gains shall be commuted under the State law aid the tax thereon computed at the merged Slate rate of tax; 584 (iii) the amount, if any, by which the tax computed under clause (i) exceeds the tax computed under clause (ii) shall be allowed as rebate from the first mentioned tax, and the amount of the first mentioned tax as so reduced shall be the tax payable.
(3) For the purposes of this paragraph (a) the merged State assessment year 1948 49 means the assessment year which commences on any date between the 1st April, 1948, and the 31st December, 1948, both dates inclusive; and (b) the merged State assessment year 1949 50 means the assessment year which commences on any date between the 2nd January, 1949, and the 31st July, 1949, both dates inclusive.
" 6. "(1) The income, profits and gains of any previous year ending after the 31st day of March, 1948, which does not fall within paragraph 5 of this Order or of any previous year commencing after the previous year referred to in the said paragraph shall be assessed under the Indian Income tax Act, 1922, but the tax payable on so much of the income as pertains to the period ending before the 1st day of August, 1949, shall be determined as hereunder (i) the tax on so much of such income included in the total income shall be computed (a) at the Indian rate of tax and (b) at the rates of tax in force in the merged State immediately before the 1st day of August, 1949; (ii) the amount by which the tax computed under sub clause (a) of clause (i) exceeds the tax computed under sub clause (b) of clause (i) shall be allowed as rebate from the first mentioned tax, and the amount of the first mentioned tax as so reduced shall be the tax payable.
(2) Where any previous year falls partly before and partly on or after the 1st day of August, 1949, the income, profits and gains pertaining to the period falling before the said date shall, unless the Income tax Officer, having regard to any special circumstances, otherwise 585 directs with the approval of the Inspecting Assistant Commissioner of Income tax, be in the proportion which the period before the said date bears to the whole previous year.
" 6A. "The income, profits and gains of any previous year, referred to in paragraph 5 or 6 of this Order, which accrue or arise without the taxable territories to a person who is resident but who would not be resident in the taxable territories if the Act had not been passed, shall be charged to tax in the same manner and to the same extent as specified in the said paragraph 5 or 6, as the case may be." By the application of the Income tax Act, 1922, to the territories of the merged States, income received, accrued or arisen or deemed to be received, accrued or arisen to any person resident within the territory of the merged States became chargeable to tax under that Act.
With a view to avoid hardship caused by the sudden application of high rates of taxation, the Central Government exercised its powers under section 60A of the Indian Income tax Act and modified the tax levy so as to give certain exemptions and benefits to residents in the areas of the former Indian States.
By paragraph 6 of the Merged States (Taxation Concessions) Order, 1949, in respect of the income of any previous year ending with March 31, 1948 which accrued or arose to persons who were residents in the territories of the merged States, benefit of the same rate of income tax to which it was subject in the merged State was granted by providing that the difference between tax computed at the Indian rate and the State rate shall be allowed as rebate.
In respect of income of residents in the merged States arising outside the taxable territories, a similar rebate was to be given (paragraph 6A).
The result was that income of residents of the merged States became chargeable to tax under the Indian Income tax Act, but it was to continue to get for a limited period benefit of the lower rates of tax operative under the law in force in the States before merger.
This concession or benefit was to apply by the express provisions contained in paragraph 4 only to so much of the income, profits and gains included in the total income of an assessee as would, had he been resident in the taxable territories, have been exempt under cl.
(c) of sub section (2) of section 14 of the Indian Income tax Act, 1922, if the Act had not been passed.
Counsel for the appellants claims that paragraph 4 applies to income of all assessees resident within British India as defined 586 in section 2(3A) at the relevant time, and not merely to residents in the territories of the merged States.
It is contended that by paragraph 4 it was intended not only to give the benefit of the State rate of taxation to residents of the former Indian States which were merged with the Provinces under the States Merger (Governors ' Provinces) Order, 1949, but also to preserve the benefit which was conferred by section 14(2) (c) of the Income tax Act to residents of the territories of British India before August 15, 1.947 in respect of income arising or accruing to them within the teffitory of the merged States.
It is said that by the application of Act 67 of 1949 all residents in the taxable territory became liable to pay tax at Indian rates, but with a view to maintain the status quo ante, it was intended by the Taxation Concessions Order, 1949 to restore the State rates of taxation to residents in the former Indian States, and also to continue the exemption in respect of the income of the former British Indian residents arising or accruing in the territory of the merged States within the limits prescribed by section 14(2) (c).
But paragraph 4 of the Taxation Concessions Order, 1949, is not susceptible of any such interpretation.
Paragraph 4 of the Order, and sections 3, 4, 4A, 4B and section 14(2) (c) of the Income tax Act must be read together.
The Indian States specified in the Schedule to the States Merger Order on their merger with the Provinces of British India ceased to be separate entitles and became part of British India, and by the application of Act 67 of 1949 the Indian Income tax Act was applied to the territories comprised within British India.
Section 14(2)(c) undoubtedly remained in force even after the merger of the Indian States effected by the States Merger Order, but its operation was restricted.
After the merger of the States, income arising or accruing within the territory of such merged State, could not be deemed to be income arising or accruing within an Indian State, for the State had ceased to exist, and the income was for the purpose of section 4 of the Income tax Act income arising or accruing to a person resident within the taxable territories.
There is nothing in paragraph 4 of the Concessions Order which seeks to grant exemption from liability to tax in respect of income which prior to merger of the States was not liable to tax by virtue of section 14 (2) (c), but has since the application of the Income tax Act become so liable.
The claim that paragraph 4 applies to income of residents of former British India which was exempt from taxation under section 14(2) (c) is belied by the plain words of the Order.
Para graph 4 does not substantively grant any exemption : it merely designates income to which the provisions of the Order granting 587 exemption will apply.
It applies to income which would, if Act 67 of 1949 had not been passed, have been regarded as accruing or arising in an Indian State, and the assessee would in respect of that income had he been a resident of the taxable territory before merger, have been exempt under section 14(2) (c).
The use of the expression "had he been a resident ' implies that the benefit is not to enure to persons who were before the merger entitled to the exemption under section 14(2) (c).
The Order provides that paragraphs 5, 6, 9, 10 and 11 apply to a slice of income and not to the entire income of an assessee, and by the express terms, it is that slice of the income, as would, had the assessee been resident in the taxable territories, have been exempt under cl.
(c) of sub section (2) of section 14 of the Indian Incometax Act, if the Taxation Laws Act, 1949, had not been passed.
In terms the concession is not given to residents of the territories of British India, and the context does not warrant an implication to the contrary.
It is true that by this interpretation of paragraph 4, British Indian residents are denied the benefit of the exemption under section 14(2) (c) in respect of income arising or accruing in the territories of the former merged States.
But that denial is the result of merger of the States into British India.
The operation of section 14 (2) (c) had become restricted by the modification of the definition of British India.
Since that amendment, income accruing or arising after the merger in Indian States outside British India alone would be exempt under section 14 (2) (c) There is nothing in the Concessions Order which suggests that it was intended to ensure continuance of the exemption under section 14(2) (c) to residents of British India as it was before merger, as if the merger had not taken place.
The use of the expression "had he been resident in the taxable territories" introduces a fiction : it grants the benefit of section 14(2) (c), though on the express terms it is not available, to a person who was not before the merger covered thereby, and in respect of income which would have been, if the Merger Act had not been passed, exempt from taxation in his hands, if he had been resident in British India.
In our view, Chagla, C.J., was right in observing in Mrs. Kusumben D. Mahadevia 's case(1) that : "A person resident in a Merged State, whose income accrued to him there, could not possibly claim exemption under Section 14 (2) (c).
Such an exemption could "only be claimed by a person resident in the taxable territories.
In order to give this particular (1) Income tex Ref.
No. 28 of 1955 decided on February 20, 1956 (unreported).
588 concession to a resident in a merged State this paragraph was enacted, and the particular language which we find in this paragraph was used.
" In the view we have taken on the first question, it is unnecessary to record an answer on the second question.
The appeals therefore fail and are dismissed with costs.
Appeals dismissed.

Output:
By the Taxation Laws (Extension to Merged States and Amendment) Act of 1949 the Income tax Act.
1922 was applied to the territories of the former Indian States which were merged with the former British Indian Provinces under the States Merger (Governors ' Provinces) Order.
By such application, the income received, accrued or arisen or deemed to be received, accrued or arisen to any person resident within the territory of the merged State became chargeable to income tax.
With a view to avoid hardship to residents of former Indian States, caused by the sudden application of the high rates of taxation, the Central Government issued the Merged States (Taxation Concessions) Order of 1949 under a. 60A of the Income tax Act.
Under Paragraphs 6 and 6A of Us Order income of residents of the merged States became charageable to tax under the Indian Income tax Act, but the income of any previous year ending after 31st March 1948 was to continue to get for a limited Period the benefit of lower rates of tax operative under the law in force in the States before merger.
This concession was to apply, under paragraph 4 of the Order, only to so much of the income, profits and gains included in the total income of an assessee as would, had he been resident in the taxable territories, have been exempt under section 14(2)(c) of the Income tax Act if the Taxation Laws Extension Act had not bee passed, that is, in respect of income arising or accuring to him :within territory of the merged State.
In the Calendar years 1948 and 1949, the assessee, who was resident and ordinarily resident within British India in 1948, received certaining as dividend in the State of Baroda which was one of the merged States.
The Income tax Officer upheld its claim that the dividend income had accrued or arisen in the Baroda State and as the income was not brought into British India, it was exempt from liablility to tax under section 14(2)(c) of the Income tax Act.
The Appellate Tribunal held that the dividend income arose in Baroda State, but by reason of the definition of "taxable territories" in section 2(14A) of the Income tax Act, the income attracted liability to tax and did not qualify for the rebate equal to the difference between the British Indian rate and the Baroda State rate in respect of the dividend income, under paragraph 6 of the Taxation Concessions Order.
The High Court also, on a reference, held that the assessee was not entitled to the rebate.
In appeal to this Court, the assessee contended that by the application of the Taxation Laws Extension Act, all residents in the taxable territory become liable to pay tax at the Indian rates, but with a view to maintain the status quo ante, it was intended by the Taxation Concessions Order, to restore the State rates of taxation to residents in the former Indian States, and also to continue the exemption in respect of the income of the former British India residents, arising or accruing 5 80 in the territory of the merged States within the limits prescribed by section 14(2) (c).
HELD : in terms the concession is not given to residents of the territories of British India, and the context does not warrant an implication to the contrary.
[587 C D] There is nothing in paragraph 4 of the Concessions Order which seeks to grant exemption from liability to tax in respect of income which prior to merger of the States was not liable to tax by virtue of section 14(2) (c), but has, since the application of the Income tax Act, become so liable.
The paragraph applies to income.
which would, if the Taxation Laws Extension Act had not been passed, have been regarded as accuring or arising in an Indian State, and the assessee would in respect of that income, had he been a resident of the taxable territory before merger, have been exempt under section 14(2)(c).
It is true that by this interpretation of paragraph 4 British Indian residents are denied the benefit of the exemption under section 14(2)(c) in respect of income arising or accruing in the territories of the merged State.
But the use of the expression "had he been resident in the taxable territories" implies that the benefit is not to tenure to persons who were before the merger entitled to the exemption under section 14(2)(c).
[587 A B, D]


Input:
Civil Appeals Nos.
415 418 of 1960.
Appeals from the judgments and orders dated September 23, 1958, of the Bombay High Court in Special Civil Applications Nos. 205 and 214 of 1958.
383 A. V. Viswanatha Sastri, section P. Verma, section N. Andley, Rameshwar Nath and P. L. Vohra, for the appellants (in C. A. No. 415 of 1960).
A. section Bodde and Ganapat Rai, for the appellants (in C. A. No. 417 of 1960) and respondents (in C. A. No. 418/60).
H. R. Khanna and R. H. Dhebar, for the appellants (in C. As.
Nos. 416 and 418 of 1960) and respondent No. 1 (in C. As.
Nos. 415 and 417 of 1960).
A. G. Ratnaparkhi, for respondent No. 3 (in C. A. No. 415 of 1960).
1961 November 15.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
These four appeals consist of two sets of cross appeals each and they arise from two petitions filed in the High Court of Bombay at Nagpur challenging the validity of the notification dated June 11, 1958, issued by the State of Bombay, now represented by the State of Maharashtra, under section 5 of the , ( 11 of 1948) (hereafter called the Act.) The petitioners in Special Civil Application No. 205 of 1958 are the Bidi, Bidi Leaves and Tobacco Merchants ' Association, Gondia and two others, whereas the petitioners in Special Civil Application No. 214 of 1958 are Haji latif Ghani Kachhi and five others.
The impugned notification consists of seven clauses.
By the majority decision of the High Court cls.
1 to 5 and the first part of cl. 6 are held to be intra vires, whereas the latter part of cl. 6 and cl. 7 as well as the explanation added to it are held to be ultra vires.
The first part of the finding is Challenged by the petitioners in the two writ petitions by their Civil Appeals Nos. 415 and 417 respectively, while the latter part of the finding is challenged by the State of Maharashtra in its Civil Appeals Nos. 416 and 418 respectively.
Thus, Civil Appeals Nos. 415 and 416 are cross 384 appeals and Civil Appeals Nos. 417 and 418 are cross appeals.
These appeals have been brought to this Court with a certificate granted by the High Court under article 132(1) of the Constitution.
As will presently appear the only point which calls for our decision in these appeals is one relating to the validity of the impugned notification; and so the certificate might well have been given under article 133 (1)(c) and not under article 132 (1) because the case does not involve a substantial question of law as to the interpretation of the Constitution.
For convenience we will refer to the petitioners in the writ petitions as petitioners and the State of Maharashtra as the respondent in these appeals.
The petitioners are bidi manufacturers in different parts of the Vidarbha region and they employ a large number of persons for the purpose of making bidis for them.
It appears that the Government of the State of Madhya Pradesh within whose jurisdiction Vidarbha was then situated had fixed the minimum rates of wages in respect of employment in tobacco (including bidi making) manufactories by issuing a notification on January 11, 1951.
This notification had purported to fix the minimum rates of wages per 1000 bidis by reference to different localities in the State.
The rates thus fixed were inclusive of dearness allowance or compensatory cost of living allowance and they varied from place to place as specified in columns 2 to 4 of the notification respectively.
An Advisory Board was thereafter constituted by the said State in exercise of the powers conferred on it by section 7 of the Act.
Subsequently, in 1956 the said minimum rates of wages were revised by a notification issued on February 23, 1956.
As a result of the State Reorganisation Act, 1956 (37 of 1956) the Vidarbha region became part of the State of Bombay.
After Vidarbha thus became a part of the State of Bombay the Government of Bombay notified that the Advisory Board appointed by the said Government 385 under section 7 shall be the Advisory Board for Vidarbha.
This notification was issued on November 1, 1956.
The Government of Bombay then issued a notification publishing the draft of the notification which was proposed to be issued under section 5, sub section
(2) read with cl.
(b) of sub section
(1) of section 5, and notice was thereby given to all the bidi manufacturers that the said draft would be taken into consideration on or after March 1, 1957.
Thereafter the procedure prescribed by section 5 was followed, an enquiry was held, a report of the Advisory Board was received and finally the impugned notification was issued on June 11, 1958.
It is the validity of the several clauses contained in this notification that is challenged before us in the present appeals.
In their petitions the petitioners alleged that cls.
3 to 7 of the notification were invalid and ultra vires the powers of the respondent under sections 3, 4 and 5 of the Act.
According to them the respondent had no power to make provision for deciding as to the extent to which "chhat" will be permitted or directing the action to be taken by the employer and employee relating to bad bidis.
Their contention was that the said clauses purported to make provisions for the settlement of disputes between the employer and the employee concerning an Industrial matter and were outside the purview of the respondent 's power under the relevant sections.
They urged that the different provisions of the notification were so interrelated that it was difficult to dissociate one from the other and so it was necessary that the notification as a whole should be quashed.
The respondent disputed the correctness of the contentions raised by the petitioners.
It urged that there were constant disputes among bidi manufacturers and bidi workers regarding the minimum wages fixed in the Vidarbha region and so the respondent thought it necessary to institute 386 an enquiry into these complaints in order to decide whether it was necessary to revise the minimum wages prescribed by the earlier notification and the mode of determining those wages.
It was only after a comprehensive enquiry was held at which all parties were heard that the respondent issued the notification in question.
Its case was that the minimum rates of wages had been fixed on industry cum regionwise basis and that cls.
3 to 7 were intended to make the fixation of minimum rates of wages effective.
According to the respondent, the absence of any rules regarding the exercise of the right of "chhat" by the employers tends to deprive the bidi workers of their right of getting minimum rates of wages, and so cls.
3 to 7 were deliberately introduced to make the material provisions of the Act effective in their implementation.
These petitions were first heard by Mudholkar and Kotval, JJ.
Mudholkar, J. held that all the clauses in the impugned notification were valid for, according to him, though the Act had not conferred express powers on the respondent to prescribe the impugned clauses of the notification yet the respondent could prescribe the said rules under the doctorine of implied powers.
Kotval, J., agreed that cls.
1 and 2 were valid but he thought that even under the doctrine of implied powers the remaining cls.
3 to 7 could not be sustained.
According to him the said clauses were, however, severable from cls.
1 and 2 and so they should be struck down leaving cls. 1 and 2 in tact.
Since there was a difference of opinion between the two learned judges the matter was referred to Tambe, J. He held that cls.
1 to 5 and the first part of cl. 6 were intra vires where as the latter part of cl. 6 and cl. 7 as well as the explanation added to it were ultra vires.
After Mr. Justice Tambe pronounced his judgment the matter was again referred to a Division Bench, and the Division Bench, in accordance with the majority opinion, has upheld the validity of cls.
1 to 5 and 387 the first part of cl. 6 and has struck down the latter part of cl. 6 as well as cl. 7 and its explanation.
It is against this decision that the petitioners and the respondent have come to this Court with a certificate granted by the High Court in that behalf.
Before dealing with the merits of the controversy between the parties it would be relevant to refer to the material provisions of the Act.
The Act was passed in 1948 in order to provide for fixing minimum rates of wages in certain employments.
Its provisions apply to the scheduled employment which expression under section 2 (g) means an employment specified in the schedule, or any process or branch of work forming part of such employment.
It is common ground that employment in any tobacco (including bidi making) manufactory is a scheduled employment under the schedule of the Act.
Section 2(h) defines wages and it prescribes inter alia, that wages means all, remuneration capable of being expressed in terms of money which would, if the terms of the contract of employment, express or implied, were fulfilled be payable to a person employed in respect of his employment or of work done in such employment, and includes house rent allowance, but does not include the items specified by cls.(i) to (v) of the said definition.
Section 3 authorises the appropriate Government to prescribe different minimum rates of wages for different scheduled employments, different classes of work in the same scheduled employments, adults, adolescents, children and apprentices and different localities.
Under section 4 are prescribed the components of the minimum rates of wages.
Section 5 provides for the procedure for fixing and revising minimum wages.
Section 7 provides, inter alia, that minimum wages payable under the Act shall be paid in cash.
Under section 12 an obligation is imposed on the employer to pay every one of his employees engaged in the scheduled employment wages at a rate 388 not less than the minimum rate of wages fixed by the notification issued in that behalf.
Section 12 (2) saves the application of the provisions of the payment of wages Act.
Section 20 authorises the appropriate Government to appoint an authority to hear and decide for any specified area all claims arising out of the payment of less than the minimum rates of wages and other claims specified therein.
The remaining sub sections of the said section prescribe the procedure for determining such claims.
Under section 21 a single application can be made in respect of a number of employees who wish to prefer a claim for the decision of the authority under section 20.
Section 22 prescribes penalties for the offences therein specified.
Section 22A provides that if any employer contravenes any of the provisions of the Act or any rule or order made thereunder he shall, if no other penalty is provided for such contravention, be punishable with fine which may extend to five hundred rupees.
Section 22B provides, inter alia the manner in which Courts may take cognizance of a complaint against any person for an offence committed under the Act.
That in brief is the scheme of the material provisions of the Act.
At this stage it would be necessary to read the several clauses of the impugned notification : "No. MWA.
1557 J.
In exercise of the powers conferred by sub section (2) of section 5 read with clause (b) of sub section (1) of that section of the (XI of 1948) and after consulting the Advisory Board and in supersession of the former Government of Madhya Pradesh Labour Department Notification No. 564 451 XXIII, dated 23rd February, 1956, the Government of Bombay hereby revise the minimum rates of wages in respect of the employment in any tobacco (including bidi making) manufactory in the Vidarbha region of the State of Bombay 389 as mentioned in the Schedule hereto annexed and directs that this notification shall come into force with effect from 1st July, 1958.
SCHEDULE Subject to the other provisions of this Schedule, the revised minimum rates of wages payable to employees per thousand bidis (when leaves are supplied by the employer) shall be as follows: Area Revised rates in Rs. (i) Nagpur District . 1.69 (ii) Bhandara District . 1.62 (iii) Chanda, Akola, Buldana, Yeotmal, Amravati and Wardha District . 1.56 2.
For all bidis in which 7 chhataks or more of tobacco mixture is used and for those bidis which are known as "Hatnakun" bidis, there shall be an increase of 12 Naye Paise per 1000 bidis in the rates mentioned above in all the areas.
It shall be within the discretion of the employer to decide which are "chhat" bidis or bad bidis, up to 5 per cent of the bidis prepared by the employee.
If the employer decided that any bidis are "chhat" or bad, the "chhat" or bad bidis up to 5 per cent shall be destroyed forthwith by the employee and whatever tobacco is recovered from them shall be retained by the employer.
If, however the employer wants to retain these "chhat" or bad bidis, he shall pay full wages for the same to the employee.
If "chhat" or bad bidis are more than 5 per cent, but less than 10 per cent, and if there is any dispute between the employer 390 and the employee as to whether the '"chhat" or bad bidis is done properly or not, equal number of representatives of the employer and the employees shall inspect the "chhat" is done properly or not.
If there is any difference of opinion among the representatives of the two sides, the majority opinion shall prevail.
If the opinion is equally divided and the employer wants to retain the "chhat" bidis, he shall pay wages for "chhat" bidis between 5 per cent to 10 per cent at half the rates fixed above.
If the employee does not want to retain these bidis the employee shall destroy them forthwith.
The employer shall nominate his representatives and the employees shall elect their representatives.
In the case of "chhat" above 10 per cent., the employee shall be entitled to full wages.
It shall, however, be open to the employer to take suitable action against the employee if the "chhat" is more than 10 per cent for 6 continuous working days in a calendar month.
The "chhat" shall be made once in a day only, at any premises within a distance of not more than 2 miles from the premises where bidis are manufactured.
Explanation: For the purpose of this Schedule the expression "employer" includes his thekedar, contractor or agent as the case may be. ' The validity of cls.
1 and 2 is not in dispute.
The petitioners, however, contend that cls.
3 to 7 are outside the powers conferred on the respondent by the relevant provisions of the Act and as such are invalid.
It is common ground that even if the impugned clauses are held to be ultra vires they are 391 severable from cls.
1 and 2 so that the invalidity of the impugned clauses will not affect the validity of the said two clauses and they will stand even if the other clauses are struck down.
In determining the question about the validity of the impugned clauses it is necessary to refer to two material facts.
The nature and scope of the terms of contract between the petitioners and their employees are really not in dispute.
It is alleged by the petitioners that they employ a large number of persons for the purpose of making bidis for them, that these persons are supplied with tendu leaves, tobacco and other necessary materials, they take the said articles to their respective places where they work and brings back the bidis prepared by them to the employer.
The employer then examines the bidis ' accepts such of them as are found to have been prepared according to the terms of the contract rejects such of them as are found to be of poor quality and not prepared according to the terms of the contract and pays for the bidis actually accepted.
The respondent has not traversed these allegations made by the petitioners.
It admitted that the workers are paid on piece rate basis and the payment is made "on the basis of bidis selected and accepted by the employer after rejecting certain portions of bidis prepared by the workers".
In fact the respondent has expressly stated that "there is a recognised practice of making payment on the basis of bidis accepted by employers as coming up to a certain standard of skill".
It is further admitted that the employers have insisted on their right in principle of rejecting the sub normal or sub standard bidis prepared by the employees.
Thus, there is no doubt that under the terms of the contract the workers are entitled to receive payment only for the bidis accepted by the employers, and not for those 392 which are rejected.
It is also not disputed that the bidis which are rejected by the employers otherwise known as "chhats" are retained by the employer though he refuses to take them into account in the matter of payment to the workers on the ground that they do not come up to the standard of skill or quality prescribed by the contract.
It also appears to be true that the employees in this region have been protesting against improper rejection of the bidis by the employers.
They have contended that the employers reject an unreasonably high proportion of bidis falsely dubbing them as of sub normal quality without paying anything to the workers for their labour spent in rolling such rejected bidis.
In its affidavit the respondent has emphasised that as a result of to is method of discarding bidis on the ground that they are of sub standard quality bidis workers were deprived of the labour charges for bidis which are rejected by their employers; and so it was urged that the question of fixing maximum rates of wages for bidi workers necessarily involved the question as to the quantum or percentage of such rejection which should be permissible to the employer.
According to the respondent the impugned notification has purported to fix the minimum rates of wages after taking into consideration the problem presented by the practice of discarding bidis and paying wages to the workers only for such bidis as are accepted.
In support of the validity of the notification the respondent also relied on the fact that the formula prescribed by the notification had been evolved after taking into account the representations made both by the employers and the employees.
In fact, according to the respondent, this said formula represented a substantial degree of agreement between the parties on this point.
It would thus be seen that on the two material facts there is really no serious dispute between the 393 parties.
The respondent agrees that under the practice which must be taken to be consistent with the implied terms of contract between the bidi manufacturer and his employee, after the bidis are prepared by the employees and brought back to the employer the employer has a right to examine the quality of the bidis, accept only such as have come up to the standard prescribed by the contract and reject the rest.
The practice further justifies the payment of wages to the employees only for the bidis actually accepted and not for those which are rejected though the rejected bidis may be retained by the employer.
On the other hand, it is not, and cannot be seriously disputed by the petitioners that in some cases this practice may work great hardship on the workers, and in every case the workers do not get wages for the labour put by them in rolling the rejected bidis.
The main question which arises for our decision in the present appeals is whether the injustice resulting from the practice of discarding bidis and not making any payment for them to the workers can be checked, controlled and regulated by the respondent by issuing a notification under the powers conferred on it by section 5 of the Act.
If the relevant provisions of the Act confer upon the respondent the power to check the evil against which the workers complain then of course the validity of the impugned clauses would be beyond challenge.
If, on the other hand, the power to prescribe or revise minimum rates of wages does not either expressly or by necessary implication include the power to provide for the machinery to check the evil in question, then the impugned clauses would be ultra vires however necessary it may be to check and control the said evil in question.
In this connection let us broadly examine the scope and effect of the impugned clauses.
Clauses 1 and 2 prescribe the revived minimum rates districtwise and provide for the payment of higher 394 Price for the bidis known as Hatnakhun bidis in all and the said districts.
These two clauses are obviously valid and the petitioners have not disputed the conclusion of the High Court in that behalf.
Clauses 3 to 6 deal with the problem of the that bidis or bidis which are rejected because they are bad.
Clause 3 leaves it to the discretion of the employer to decide which are chhat bidis up to 5 percent of the bidis prepared by the employees.
This clause provides that the bidis to rejected would be destroyed and tobacco recovered from them retained by the employer; and it adds that if the employer wants to retain the rejected bidis he shall pay full wages for the same to the employee.
In other words this, clause means that the employer may discard bidis up to 5 percent but if he does not want to pay the workers for the said bidis he must destroy them.
That would show that the discretion exercised by him is honest and fair.
If, on the other hand, he wants to retain the said bidis that would mean that he thinks that the bidis would find a market and in that case he must pay for them on the basis that they are good bidis.
On principle this provision may perhaps not be open to any serious criticism and it is not unlikely that if the notification had not made further detailed provisions by cls.
4 to 6 the present dispute would not have been brought before the High Court.
The employers probably do not have a serious grievance against cl. 3 on the merits.
Clause 4 deals with cases where the rejection may be more than 5 per cent but less than 10 per cent of total work produced by the worker.
In regard to this class of cases cl. 4 provides for a machinery to deal with cases falling under it.
Representatives of the employers and employees have to be appointed and they have to decide whether the work have been properly done or not.
The decision would be according to the opinion of the majority.
If the opinion is equally divided 395 and the employer wants to retain the chhat bidis, between 5 per cent to 10 per cent he shall pay at half the rates fixed in cl. 1.
If the employer does not want to retain them the employees shall destroy them, The clause does not seem to provide for 3 7 case where the majority opinion may support the rejection between 5 per cent and 10 percent; that is a lacuna in the clause.
The only comment which can be legitimately made against the clause on its merits is that the setting up of the machinery for a kind of adjudication of the dispute between the employer and the employee may, instead of solving the difficulties in actual working, add to them.
That takes us to cl. 6.
This clause has been very severely criticised by the petitioners.
It provides that in case of chhat about 10 per cent the employees shall be entitled to full wages which means that even if chhat above 10 per cent is made reasonably and for a proper cause the employer has to pay for the discarded work as therein prescribed; the only right given to the employer in such a case is to take suitable action against the employee if the chhat is more than 10 per cent and that too for six continuous working days in a calendar month.
Prima facie this clause appears to be unreasonable and unjust.
The explanation to cl. 7 is also criticised by the petitioners because the thekedar, contractor or agent, who is appointed by the employer would, if the explanation is valid, be liable to perform all the obligations imposed on the employer by the relevant provisions of the Act such as sections 12 and 18.
We have examined the broad features of the notification and indicated the comment made on it by the petitioners for the purpose of showing that on the merits some of the clauses do not appear to be fair and just, but that is not the ground on which their validity can be or has been challenged before us.
The main argument in support of the challenge 396 rests on the assumption that cls.
3 to 7 are all beyond the powers conferred on the respondent by the relevant provisions of the Act; and it is this argument which needs to be examined.
It is well settled that industrial adjudication under the provisions of the Industrial Disputes Act, 1947(14 of 1947) is given wide powers and jurisdiction to make appropriate awards in determining in industrial disputes brought before it.
An award made in an industrial adjudication may impose new obligations on the employer in the interest of social justice and with a view to secure peace and harmony between the employer and his workmen and full co operation between them.
Such an award may even alter the terms of employment if it is thought fit and necessary to do so.
In deciding industrial disputes the jurisdiction of the tribunal is not confined to the administration of justice in accordance with the law of contract.
Mukherjee, J., as he then was, has observed in The Bharat Bank Ltd., Delhi vs Employees of the Bharat Bank Ltd., Delhi the tribunal "can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement.
It has not merely to interpret or given effect to the contractual rights and obligations between them which it considers essential for keeping industrial peace." since the decision of the Federal Court in Western India Automobile Association vs Industrial Tribunal, Bombay, it has been repeatedly held that the jurisdiction of industrial tribunals if much wider and can be reasonably exercised in deciding industrial disputes with the object of keeping industrial peace and progress (Vide: Rohtas Industries, Ltd., vs Brijnandan Pandey; The Patna Electric Supply Co. Ltd., Patna vs The Patna Electric Supply Workers Union.
Indeed, during the last ten years and more 397 industrial adjudication in this country has made so much progress in determining industrial disputes arising between industrial of different kind and their employee that the jurisdiction and authority of industrial tribunals to deal with such disputes with the object of ensuring social justice is no longer seriously disputed.
But, it is necessary to remember that no claim can be made for such broad jurisdictional power by the respondent when it purports to issue a notification under the provisions of the Act.
These powers and authority would necessarily be conditioned by the relevant provisions under which it purports to act, and the validity of the impugned notification must therefore be judged not by general considerations of social justice or even considerations for introducing industrial peace; they must be judged solely and exclusively by the test prescribed by the provisions of the statute itself.
It appears that in 1956 before Vidarbha became a part of the state of Bombay the State Government of Madhdya Pradesh had made a comprehensive reference for the arbitration by the State Industrial Court between the bidi manufacturers of Bhandara District and their employee.
In this dispute all the material issues arising from the prevailing practice which authorised employers to reject chhat bidis had been expressly referred for adjudication.
Subsequently, when the impugned notification was issued the respondent apparently took the view that what could have been achieved by reference to the arbitration of state Industrial Court may well be accomplished by issuing a notification under section 5 of the Act.
It may be that there is substance in the grievance made by the employees that the practice of rejecting chhat bidis often leads to the injustice and deprives them of the wages legitimately earned by them by rolling the said bidis and there can be no doubt that if a comprehensive reference is made for the decision of 398 this industrial dispute between the bidi manufacturers and their employees an award may well be passed which will resolve this dispute; but the question which falls for our decision is whether the relevant provisions of the Act authorised the State Government to make rules for the decision of the dispute in that behalf and for the payment of minimum rate of wages on the basis of such decision? In our opinion, the answer to this question has to be in the negative.
What is the extent of the authority conferred on the respondent in fixing or revising minimum rates of the wages under the relevant provisions of the Acts In dealing with this question we must necessarily bear in mind the definition of the term "wages" prescribed by section 2(h).
As we have already been the term "wages" includes remuneration which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment.
In other words, the terms "wages" refers to remuneration payable to the employee as a result of the terms of employment.
What would be the amount to which the employee is entitled if the other terms of the contract are preferred ? That the question which has to be asked in determining what the term "wages" means under (h).
No doubt sections 3, 4 and 5 authorised the appropriate Government to fix the minimum rates of wages.
In other words, if the wages fixed by a contract which is either express or implied are found to be low authority is conferred on the appropriate Government to increase them so as to bring them to the level of what the said Government regards as the minimum wages in the particular scheduled employment in the particular area concerned.
This means that power is conferred on the appropriate Government to modify one term of the contract express or implied between the employer and the 399 employee and that is a term which has reference to the payment of wages.
If for a certain piece of work done by the employee the employer has agreed to pay him either expressly or by implication a certain amount of wages the appropriate Government can issue a notification and prescribe that for the said work done under the contract the employer must pay his employee a much higher rate of wages and the higher rate of wages thus prescribed would be deemed to be the minimum rate of wages between the parties.
It would, however, be noticed that in defining "wages" cl. 2(h) postulates that they would be payable if the other terms of the contract of employment are fulfilled.
That is to say, authorising the fixation of minimum rates of wages the other terms of the contract of employment have always to be fulfilled.
The fulfillment of the other terms of the contract is a condition precedent for the payment of wages as defined under section 2 (h) and it continues to be such a condition precedent even for the payment of the minimum rates of wages fixed and prescribed by the appropriate Government.
The significance of the definition contained in section 2(h) lies in the fact that the, rate of wage may be increased but no change can be made in the other terms of the contract.
In other words, the Act operated on the other terms of the Contract on the other terms of the contract between the employer and the employee.
That is the basic approach which must be adopted in determining the scope and effect of the powers conferred on the appropriate Government by the relevant provisions of the statute authorising it to prescribe fix or minimum rates of wages or to revise them.
What the appropriate Government is authorised to do is to proscribe, fix or revise wages and wages are defined to be remuneration payable to the employees if the terms of the contract of employment, express or implied, were fulfilled.
400 This definition runs, as it inevitably must, through the and the material provisions of the Act and its importance cannot therefore be ignored.
Bearing this fact in mind let us examine the impugned clauses of the notification.
Clauses 1 and 2 clearly fall within the purview of the power conferred on the respondent because they do no more than prescribe the minimum rates of rates as therein specified; out cls.
3 to 7 clearly and unambiguously purport to deal with the terms of the contract between the parties other than that relating to the remuneration.
These clause are obviously intended to deal with the dispute between the employers and their employees as to how bidis should be discarded and in that proportion and what should be the procedure to be followed in regard to the? payment for such discarded bidis.
In appreciating the true effect of these clauses it is necessary to recall that the parties are agreed about the practice at present prevailing which must be taken to represent the terms of the contract either express or implied.
According to the said practice the employer decides which bidis should he discarded, he retains the discarded bidis and pays only for such bidis as are accepted be him.
It if plain that the impugned clauses of the notification purport to modify these terms in material particulars and that and be plainly outside the jurisdiction of the authority of the respondent.
It may well form the subject matter of reference for industrial adjudication but it cannot form the subject matter of a notification prescribing minimum rates of wages under sections 3, 4 or 5.
It is conceded by the respondent that there is no express provision in the act, which authorised the setting up of the machinery as prescribed by cls.
3 and 4 or for laying down the manner in which the employer should make payment for the discarded bidis.
It is, however, strenuously urged that the validity of these clauses should be upheld on the ground of the 401 implied power of the respondent; and that takes us to the question as to the true scope and effect of the doctrine of implied power.
"One of the first principles of law with regal to the effect of an enabling act", observes Craies, "is that if a Legislature enables something to be done, it gives power at the same time by necessary implication to do everything which is indispensable for the purpose of carrying out the purposes in view(1)".
The principle on which the doctrine is based is contained in the legal maxim 'Quando lex aliquid concedit concedere videtur et illud sine quo res ibsa ease non potest '.
This maxim has been thus translated by Broom thus: "whoever grants a thing is deemed also to grant that without which the grant itself would be of no effect".
Dealing with this doctrine Pollock, C.B., observed in Michaely Fenton and James Fraser vs John Stephen, Hempton "It becomes therefore all important to consider the true import of this maxim, and the extent to which it has been applied.
After the fullest research which I have been able to bastow, I take the matter to stand thus : Whenever anything is authorised, and especially if, as matter of duty, required to be done by law, and it is found impossible to do that thing unless something else not authorised in express terms be else done, then that something will be supplied by necessary intendment." This doctrine can be invoked in cases "where an Act confers a jurisdiction it also confers by implication the power of doing all such acts, or employing such means as are essentially necessary to its execution (3).
" In other words, the doctrine of implied powers can be legitimately invoked when it is found that a duty has been imposed or a power conferred on an authority by a statute and it is further found that the duty cannot be discharged or the power cannot be exercised at all unless some 402 auxiliary or incidental power is assumed to exist.
In such a case, in the absence of an implied power the statute itself would become impossible of compliance.
The impossibility in question must be of a general nature as that the performance of duty or the exercise of power is rendered impossible in all cases.
It really means that the statutory provision would become a dead letter and cannot be enforced unless a subsidiary power is implied.
This position in regard to the scope and effect of doctrine of implied powers is not seriously in dispute before us.
The parties are at issue, however, on the question as to whether the doctrine of implied powers can help to validate the impugned clauses in the notification.
The respondent strenuously contends that cls.
1 and 2 of the notification which have prescribed the minimum rates of wages per 1000 bidis would become ineffective unless cls.
3 to 7 supplement them.
The argument is that by improper or dishonest exercise of the power conferred on the employer by the contract of employment to discard chhat bidis the employees would be cheated of their legitimate due wages under cls.
1 and 2 and so, in order to make the provisions of cls. 1 and 2 effective some subsidiary provisions had to be made for settling the dispute between the employer and his workmen in regard to chhat bidis.
As we have already observed, the grievance made by the employees on the score of improper rejection of bidis may in many cases be well founded; but the seriousness of the said grievance and the urgent necessity to meet it would hardly be a proper basis for invoking the doctrine of implied power where the provisions of the statute are quite clearly against the assumption of such implied power.
The definition of the term "wheres" postulates the binding character of the other terms of the contract and brings within the purview of the Act only one 403 term and that relates to wages and no other.
That being so, it is difficult to hold that by implication the very basic concept of the term "wages" can be ignored and the other terms of the contract can be dealt with by the notification issued under the relevant provisions of the Act.
When the said other terms of the contract are outside the scope of the Act altogether how could they be affected by the notification under the Act under the doctrine of implied powers Besides, in this connection it is also necessary to bear in mind the provisions of sections 20 and 21 of the Act.
These two sections provide for the settlement of claims made by employees in regard to the payment of minimum rates of wages.
If for instance, good bidis are rejected by the employer as chhat bidis improperly and without justification the employees can make a claim in that behalf and the same would be tried under sections 20 and 21.
Therefore the Act has made a specific provision for the enforcement and implementation of the minimum rates of wages prescribed by notifications.
The present notification purports to ignore the said provisions and sets up a machinery to settle the said disputes.
Clauses 1 and 2 of the notification have prescribed the revised minimum rates of wages.
If, in the matter of payment of the said wages, any disputes arise they must be left for adjudication by the authority prescribed by section 20.
That is another reason why the doctrine of implied powers cannot be invoked in support of the validity of the impugned clauses in the notification.
There is yet another consideration which is relevant in dealing with the question about the implied powers.
The doctrine of implied power can be invoked where without the said power the material provision of the Act would become impossible of enforcement.
In the present 404 case all that section 5 requires is the fixation of minimum rates of wages, and that has been done by the notification by cls. 1 and 2.
What the subsidiary clauses purport to do is to make the enforcement of the fixed rate effective by providing for a machinery to deal with the possible disputes arising between the parties as a result of the practice of discarding chhat bidis.
In other words, cls. 1 and 2 fix the minimum rates of wages and thus section 5 has been complied with and enforced.
The remaining clauses purport to make the implementation of the provisions of cls. 1 and 2 effective.
That is very different from giving effect to section 5 itself.
The enforcement of the notification is clearly not the same thing as exercising the power of fixing or revising the minimum rates of wages under section 5.
A Power may be implied, if necessary, in discharging the duty imposed upon the appropriate Government or in exercising the power conferred on the State Government in the matter of fixing or revising the minimum rates of wages; but surely no power can be implied for making effective the implementation of the notification issued under the said power or in the discharge of the said duty.
The purpose of the Act cannot be said to have failed after the minimum rates of wages are prescribed and notified.
What may turn out to be ineffective is the provision for payment of the said wages by reason of the rejection of good bidis; but that is a matter of an industrial dispute which has to be adjudicated upon under sections 20 and 21 or under other provisions of the law.
It is true that a large section of the workers in the bidi trade is illiterate, uneducated and unorganised; and there can be no doubt that their grievance on the ground of improper rejection of the bidis deserves to be redressed, but, in our opinion, the procedure adopted by the respondent in redressing the said grievance is outside the scope of the Act, and therefore beyond the powers conferred on it by section 5.
The proper remedy 405 in such a case may be to make a comprehensive reference of the dispute to the competent industrial tribunal and invite the tribunal to make a proper award in that behalf.
We are, therefore, inclined to take the view that cls.
3 to 7 which form an integral scheme are outside the purview of the powers conferred on the respondent by section 5 of the Act and must therefore be declared to be ultra vires.
It is common ground that these clauses are severable from cls.
1 and 2 and that their invalidity does not affect the validity of the said two clauses.
In the result Civil Appeals Nos. 415 and 417 are allowed and Civil Appeals Nos. 416 and 418 are dismissed.
Respondent to pay the costs of the petitioners in Civil Appeals Nos. 415 and 417.
One set of hearing cost.
C.A. Nos. 415, 417, allowed.
C.A. Nos. 416, 418 dismissed.

Output:
By section 3 of the , the appropriate Government is authorised to fix minimum rates of wages for employees in the Scheduled employments and section 5 lays down the procedure for fixing and revising such minimum wages.
The State Government published a notification dated June 11, 1958, fixing minimum rates of wages in respect of employments in bidi making in the Vidarbha region.
Clauses 1 and 2 of the notification prescribed the minimum rates district wise and provided for higher rates for making bidis known as 'Hatnakhun ' in all the districts.
Clauses 3 to 7 dealt with disputes between the employers and the employees as to how bad bidis were to be discarded and in what proportion and as to the payment for such discarded bidis.
The appellant contended that cls.
3 to 7 of the notification were ultra vires: ^ Held, that cls.
3 to 7 of the Notification were outside the purview of the powers conferred upon the State Government 382 by section 5 of the Act and were ultra vires.
The provisions of the Act empowered the Government only to fix minimum wages; they did not authorise it to make rules for resolving the disputes regarding the rejection of bad bidis and regarding the payments to be made for the rejected bidis.
The Act empowered the Government to fix the remuneration payable to an employee if the other terms of the contract were observed; it did not authorise the Government to vary the other terms.
Under the contract the employer was entitled to decide which bidis to discard, and to retain such bidis and to pay only for such bidis as were accepted by him.
Clauses 3 to 7 of the notification purported to modify these terms in material particulars and this was not within the power conferred by the Act upon the Government.
Nor could these clauses be justified on the basis of implied powers.
The doctrine of implied powers could only be invoked when it was found that a duty was imposed or a power conferred on an authority buy a statute and it was further found that the duty could not be discharged or the powers could not be exercised at all unless some auxiliary or incidental power was assumed to exist.
Even if cls.
I and 2 would become ineffective without cls.
3 to 7 being there that would not be a proper basis for invoking the doctrine of implied powers.
The definition of 'wages ' in section 2(h) of the Act postulated the binding character of the other terms of the contract and brought within the purview of the Act only the term relating to wages.
By implication the very basic concept of wages could not be ignored.
By sections 20 and 21 the Act makes specific provision for the settlement of claims in regard to payment of minimum wages and as such no powers could be implied in the Government to set up a separate machinery to settle such disputes.
Further no power could be implied to make cls.
1 and 2 of the notification effective: such power could only be implied if it was necessary to make section 5 of the Act itself effective.
Michael Fenton and James Fraser vs Jhon Stephen Hompton, (1957 59) 117 R. R. 21, referred to.


Input:
ivil Appeal No. 2597 of 1983.
From the Judgment and Order dated the 27th October, 1980 of the Allahabad High Court in Second Appeal No. 567 of 1973.
K.V. Vishwanathan, S.R. Setia, K.V. Venkataraman and C.S. Vaidyanathan for the Appellants.
Yogeshwar Prasad, P.K. Bajaj, Ms. Rachna Gupta, Ms. Rani Chhabra for the Respondents.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
This appeal is from the Judgment of the Allahabad High Court dated 27.10.1980 in Second Appeal No. 567 of 1973 allowing the appeal and decreeing the suit of the first respondent for specific performance of contract dated 5.4.1966, wherein it was stipulated that the defendant No. 1 (second respondent) had executed a fictitious sale deed dated 2.9.1966 for Rs.1,000 in favour of defendant No. 2 Kalawati, in respect of half of the suit chak and another sale deed dated 21.12.1966 for Rs.2,000 in favour of defendant No.3 Mithilesh Kumari.
Accordingly the plaintiff (first respondent) prayed for directing the defendants 2 & 3 (appellants herein) to execute the required sale deed in case it was not possible for the court to get it executed by defendant No. 1.
The first respondent Feteh Bahadur sued the second respondent 703 Jang Bahadur and the appellants in O.S. No. 278 of 1970, for specific performance of his contract whereunder the second respondent Jang Bahadur had agreed to sell his chak No. 249 admeasuring 10 bighas, 12 biswas and 10 biswansis to the first respondent of Rs. 5,000 out of which Rs. 4,000 were paid and the balance Rs. 1,000 to be paid within 5 years whereafter second respondent Jang Bahadur was to execute a sale deed in favour of the first respondent Fateh Bahadur.
The Court of Munsif, Fatehpur decrced the suit only for recovery of Rs. 4,850 plus pendent lite and future interest on Rs. 4,000.
Fateh Bahadur 's apeal therefrom having been dismissed by the Civil Judge he preferred second appeal No. 567 of 1973 in the High Court of Judicature at Allahabad, contending that the transfers in favour of defendant NOs.
2 & 3, the appellants herein, by Jang Bahadur were in contravention of the provision of Section 168 A of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act No. 1 of 1951) hereinafter referred to as `the Act ', and thus were void and that the view taken by the lower court that the title of Jang Bahadur came to an end since void transfers were made in favour of appellants Kalawati and Mithlesh Kumari, and thus, Jang Bahadur was no longer the holder of any title which could be conveyed to Fateh Bahadur was erroneous in law.
Reliance was placed on a decision of the High Court in Parmanand vs Board of Revenue, U.P., Allahabad reported in The defendants 2 & 3 who are appellants herein, contended that the two transfers made by Jang Bahadur in their favour were not hit by the provision of Section 168 A of the Act inasmuch as the transfers were of a portion of the shares of Jang Bahadur in the plot in dispute.
It was urged that for a transfer being hit by provision of Section 168 A of the Act the same should be in respect of a specific piece of land and not a share in a holding.
Reliance was placed on a decision of the same High Court in Bibhuti vs Kashi Ram, 1977 AWC 491.
It was not disputed that the area of land transferred under the two sale deeds in favour of appellants Kalawati and Mithlesh Kumari amounted to fragments under the Act.
The High Court considered the question as to whether a transfer which had been made not of the entire share of a holder in a holding but of a fragment would be hit by the provisions of Section 168 A of the Act and took the view that the two transfers made in favour of Kalawati and Mithlesh Kumari were clearly hit by the provisions of Section 168 A of the Act in view of the provisions of sub clause (2) of that section and that the benefit of Kalawati and Mithlesh Kumari only if the sale deeds executed in their favour could be looked into and as those sale deeds were void in the 704 eye of law it would be presumed as if no legal transfer took place in their favour and there being no legal transfer no question of applicability of Section 43 of the Transfer of Property Act arose.
As Jang Bahadur executed the agreement of sale in favour of Fateh Bahadur and as the sale deeds in favour of Kalawati and Mithlesh Kumar were held to have been void, Fateh Bahadur, according to the High Court, was entitled to a decree of specific performance against Kalawati and Mithlesh Kumari on payment of Rs. 1,000 within a period 2 months from the date of receipt of the record in the trial court failing which the court would execute the sale deed in favour of the plaintiff.
The appeal was accordingly allowed and the suit decreed as above.
Mr. K.V. Vishwanathan, the learned counsel for the appellants submits that the sale made by Jang Bahadur to the 2nd appellant Kalawati on 2.9.1966 being hit by the provisions of Section 168 A of the Act the subject matter of transfer i.e. 5 bighas, 6 biswas and 5 biswansis of Plot No. 249 in village Kichakpur got vested in the Government and the interest of Jang Bahadur in that part of the holding stood extinguished on the date of transfer i.e. 2.9.1966; that the sale made to Kalawati being void, Jang Bahadur was left only with 5 bighas, 6 biswas and 5 biswansis in Plot No. 249 of village Kichakpur.
Jang Bahadur having transferred that whole or entire portion to the first appellants Mithlesh Kumari by sale deed dated 21.12.1966 such transfer being a transfer of the whole area of the Bhumidhar it would be covered by the proviso under Section 168 A and as such, the sale would not be hit by the provisions of Section 168 ; that Sections 166, 167,168, 168 A and 189 (aa) form a scheme and if the sale is hit by the provision of 168 A, the result would be that on the date of sale, the interest of the vendor in the subject matter of sale would stand extinguished under Section 189 (aa) and hence 189 (aa) is the provision which extinguishes the right of the vendor in that part of the holding which he contracted to sell in violation of Section 168 A and that the interest of the transferee would stand extinguished under Sections 167 & 168 when the Gaon Sabha or the landholder ejects the transferee from the premises.
According to counsel, harmoniously construing Sections 168 and 189(aa), it would be amply clear that while 189(aa) extinguishes the interest of the vendor on that part of the property which he contracted to sell in violation of 168 A on the date of transfer itself, the interest of the transferee would be extinguished on ejectment from the suit premises; and the High Court erred in directing the appellants to specifically execute the sale deed in favour of the first respondent.
Ms. Rachna Gupta, the learned counsel for the first respondent.
705 submits that as the sale deeds in favour of the two appellants have been held to be void the High Court rightly decreed the suit for specific performance against them on payment of the balance or Rs.1,000 and that he having been in possession of the land and the second respondent 's fragmented sales having been found to be void, even if the land would vest in the State, the first respondent would not be divested automatically and the State has to seek possession in accordance with the law.
The only question that falls for determination is what would be the effect of the two fragmented sales in favour of the appellants.
In other words, whether as a result of the two sales the entire holding of the bhumidhar Jang Bahadur would vest in the State or only the half in the first sale would vest in the State and the remaining half would thereafter constitute the whole in the hand of the bhumidhar Jang Bahadur and the second sale being of the whole of his remnant holding would be valid so as to convey and transfer right to the vendee Mithlesh Kumari.
There is no dispute that the land of 10 bighas, 12 biswas and 10 biswansis was itself a fragment as defined in clause 8(a) of Section 3 of the Act being less than 3.125 acres.
There is also no dispute that the suit land is in a consolidated area and that the appellants were not tenure holders.
It would, therefore, follow that the two halves sold to the appellants were fragments of a fragment.
The Act was passed as it was considered expedient to provide for the abolition of the Zamindari system which involved intermediaries between the tiller of the soil and the State in Uttar Pradesh and for the acquistion of their rights, title and interest and to reform the law relating to land tenure consequent upon such abolition and acquisition and to make provision for other matters connected therewith.
The original Act did not define fragment.
The definition of `fragment ' was added by Section 2 of the U.P. Act XVIII of 1956 with a view to prevent fragmentation and promote consolidation of holdings in order to avoid uneconomic units.
Sections 152 to 175 of the Act dealt with transfer.
Section 152 provided: "The interest of a bhumidhar with tranferable rights shall subject to the conditions hereinafter contained, be transferable.
(2) Except otherwise expressly permitted by this Act or 706 any other law for the time being in force, the interest of a bhumidhar with non transferable rights shall not be transferable.
(3) A bhumidhar referred to in sub section (2) may, in such circumstances as may be prescribed, mortgage, without possessions his interest in his holding, as security for a loan taken from the State Government by way of taqavi, or from a cooperative society or from the State Bank of India, or from any other bank, which is a scheduled bank within the meaning of clause (e) of Section 2 of the , or from the Uttar Pradesh State, Agro Industrial Corporation Limited, and may also transfer by way of gift, the interest in his holding, except the part thereof which has been so mortgaged, to a recognised educational institution for any purpose connected with instructions in agriculture, horticulture and animal husbandry.
" The interests of sirdar or asami were originally not transferable as Section 153 said: "Except as expressly permitted by this Act, the interest of a sirdar and asami shall not be transferable.
" Sections 154 to 170 dealt with transfer of land by bhumidhar.
Section 166 originally provided that any transfer made by or an behalf of a sirdar or asami in contravention of the provisions of that chapter was to be void.
Section 166 has undergone amendments.
The section was substituted by the present section by U.P. Act No. XX of 1982 with effect from 3.6.1981.
The present section says: "Every transfer made in contravention of the provisions of this Act shall be void.
" What was the position in 1966 on the dates of the instant sales has to be known and correctly applied.
Section 167 earlier provided for the consequences of void transfers in the following language: 167.
(1) Where a sirdar or asami has made any transfer in contravention of the provision of this Act, the transferee and every person who may have thus obtained possession of the whole or part of the holding shall be liable to ejectment on the suit of the Gaon Sabha or the landholder, as the case may be.
(2) A decree for ejectment under sub section (1) may direct the ejectment of the sirdar or asami from the whole or part of the holding as the Court may, having regard to 707 the circumstances of the case, direct." This section was also substituted by the same Act No. XX of 1982 with effect from 3.6.1981.
Section 167 now says: "167.(1) the following consequences shall ensue in respect of every transfer which is void by virtue of Section 166, namely (a) the subject matter of transfer shall with effect from the date of transfer, be deemed to have vested in the State Government free from all encumbrances; (b) the trees, crops and wells existing on the land on the date of transfer shall, with effect from the said date, be deemed to have vested in the State Government free from all encumbrances; (c) the transferee may remove other movable property or the materials of any immovable property existing on such land on the date of transfer within such time as may be prescribed.
(2) Where any land or other property has vested in the State Government under sub section (1), it shall be lawful for the Collector to take over possession over such land or other property and to direct that any person occupying such land or property be evicted therefrom.
For the purposes of taking over such possession or evicting such unauthorised occupants, the Collector may use or cause to be used such force as may be necessary.
" The position before the amendment has been shown to us to enable us to apply the relevant law to the facts of the case.
Section 168 which dealt with consequences of ejectment under Section 167 has been omitted by U.P. Act No. VIII of 1977 with effect from 28.1.1977.
What was the provision in 1966 is not clear to us.
We are told that the section stood as follows in 1966: "section 168.
Consequences of ejectment under section 167.
All the rights and interests of the sirdar and asami upon ejectment in a suit under section 167 in the holding (or part thereof) or in any improvement made therein or to get compensation for such improvements shall be extinguished.
" But we have not been shown the enactment.
708 Section 168 A was added by Section 9 of U.P. Act XVIII of 1956, subject to the saving contained in Section 23 thereof.
This section now says: "168 A. Transfer of fragments.
Notwithstanding the provisions of any law for the time being in force, no person shall transfer whether by sale, gift or exchange any fragment situate in a consolidated area except where the transfer is in favour of tenure holder who has a plot contiguous to the fragment or where the transfer is not in favour of any such tenure holder the whole or so much of the plot in which person has bhumidhari rights, which pertains to the fragment is thereby transferred.
(2) The transfer of any land contrary to the provisions of sub section (1) shall be void.
(3) When a bhumidhar has made any transfer in contravention of the provisions of sub section (1) the provisions of Section 167 shall mutatis mutandis apply." Section 168 A has undergone amendment by Section 2 of U.P. Act XXVIII of 1961 when for the words "whole of the plot to which the fragment pertains is hereby transferred", the present words "the whole or so much of the plot in which the person has bhumidhari rights which pertains to the fragment is hereby transferrd" were substituted.
This amendment would not affect the instant case.
Some words between `167 ' and `shall ' were omitted by U.P. Act XIII of 1977, with effect from 28.1.1977.
It may be necessary to know what those were.
Sub section (1) of Section 168 A begins with a non obstante clause and it over rides the provisions of any law for the time being in force.
The expession `no person ' would include the bhumidhar.
The object of the section is to prevent fragmentation of land situated in a consolidated area and transfers that would result in fragmentation or further fragmentation shall be void and to such transfers Section 167 will mutatis mutandis be applicable.
This section comes into play only when a fragment situated in a consolidated area is transferred.
If transfer of a fragment is made in favour of tenure holder who has a plot contiguous to the fragment, the purpose of law is not defeatd inasmuch as it will be consolidated with the contiguous plot of the transferee.
When the land held by a person in a consolidated area is already a fragment then as was provided previous to the amendment in 1961 the whole of the plot to which the fragment pertained was to be 709 transferred.
After the amendment, the invalidity and applicability of Section 167 is limited to a case where the transfer is not in favour of any such tenure holder and to the whole or so much of the plot in which the person has bhumidhari rights which pertains to the fragment is thereby transferred.
If the transferor had bhumidhari rights on the whole of the fragment the whole has to be transferred.
If the person has bhumidhari rights only in a part of the plot that part on which he has bhumidhari rights can be transferred.
The part on which the person has not bhumidhari rights is not covered by the provisions not because that would not result in further fragmentation but because he had transferable bhumidhari rights only on that portion and not on the other portion.
There is no doubt that under sub section (2) transfer of any land countrary to the provisions of sub section (1) shall be void and under sub section (3) the provisions of section 167 shall mutatis mutandis apply.
Section 189 deals with extinction of the interest of a bhumidhar with transferable rights and Section 190 deals with extinction of the interest of a bhumidhar with non transferable rights.
Section 189 earlier provided: "189.
The interest of a bhumidhar in his holding or any part thereof shall be extinguished (a) when he died intestate leaving no heir entitled to inherit in accordance with the provisions of this Act; (b) when the land compromised in the holding has been acquired under any law for the time being in force relating to the acquisition of land, or (c) when he has been deprived of possession and his right to recover possession is barred by limitation" The words "bhumidhar with transferable rights" were substituted in the first sentence by U.P. Act XVIII of 1977 with effect from 28.1.1977.
Clause (aa) was added by Section 50 of U.P. Act XXXVII of 1958, so that the amended section now reads: "189.
Extinction of the interest of a bhumidhar with transferable rights.
The interest of a bhumidhar with transferable rights in his holding or any part thereof shall be extinguished 710 (a) when he dies intestate leaving no heir entitled to inherit in accordance with the provisions of this Act; (aa) when the holding or part thereof has been transferred or let out in contravention of the provisions of this Act; (b) when the land comprised in the holding has been acquired under any law for the time being in force relating to the acquisition of land; or (c) when he has been deprived of possession and this right to recover possession is barred by limitation.
" The substitution of the words "bhumidhar with transferable right" for the word "bhumidhar" would not make any difference when the bhumidhar had transferable rights but would make a difference where the bhumidhar has also lands with non transferable rights.
Thus, under the amended provisions the interest of a bhumidhar with transferable rights in his holding or in part thereof shall be extinguished when the holding or part thereof with bhumidhari rights has been transferred or let out in contravention of the provisions of the Act.
In other words when he had bhumidhari rights on the entire holding and the same is transferred or let out in contravention of the provisions of the Act his interest shall be extinguished.
If he had bhumidhari right only on a part thereof and it has been transferred or let out in contravention of the provisions of the Act his interest in bhumidhari right in that part shall be extinguished.
The reason behind the provisions to make fragmentation is the need to prevent further fragmentation if the bhumidhar with his bhumidhari rights over a fragment tries to transfer the fragment, his right over the fragment is extinguished.
Will the same by the result if instead of transferring the entire fragment he transfers a fragment of a fragment? If only a fragment of a fragment is so transferred would the whole fragment be vested in State? Applying the law to the facts of the case in hand we find that the bhumidhar Jang Bahadur 's land admeasuring 10 bighas, 12 biswas and 10 biswansis was itself admittedly a fragment.
Jang Bahadur entered into an agreement to sell the land on 5.4.1966 and the first respondent Fateh Bahadur on payment of advance of Rs. 4000 is stated to have had possession of the land.
That sale would attract the provisions of Section 168 A if it resulted in transfer of the fragment.
The sales to the appellants.
Kalawati defendant No. 2 was dated 2.9.1966 and to Mith 711 lesh Kumari defendant No. 3 was dated 21.12.1966.
These two sales would be covered by the old provisions of sections 166 and 167, which sections did not deal with the case of bhumidhar but only by sirdar or asami.
But Section 168 A would be attracted and the provisions of Section 167 would mutatis mutandis be applicable.
The High Court did not examine the facts of the case in light of the laws prevailing at the time of the sales.
If the sales were in contravention of the provisions of law so as to entail invalidity of the sale and vesting of the land sold in the State, the question whether in such a case specific performance of the contract would be justified or not would also be germane.
While holding both the sales to the appellants to have been void, the High Court did not take into consideration the exception as to transfer of "the whole or so much of the plot in which the person has bhumidhari rights.
" The High Court also failed to notice and apply clause (aa) of Section 189 which was added by Section 50 of U.P. Act XXXVII of 1958 and was applicable to the case.
Festinatio justitiae est noverea informateeni.
(Hob. 97) Hasty justice is stepmother of misfortune.
Injustum est nisi tota lege inspecta, de una aliqua ejus particula proposita judicare vel respondere.
It is unjust to decide or respond to any particular part of a law without examining the whole of the law.
But we are in time constraint.
By consensus with the learned counsel for the parties, we set aside the impugned order and remand this case to the High Court for disposal in accordance with the law applicable to the facts of the case expeditiously.
The appeal is disposed of accordingly.
We leave the parties to bear their own costs.
V.P.R. Appeal disposed of.

Output:
The respondent No. 1 sued the second respondent (defendant No. 1) and the appellants (defendant Nos. 2 and 3) for specific performance of a contract whereunder the second respondent had agreed to sell his lands to the first respondent for Rs. 5,000 out of which Rs.4,000 were paid, and the balance Rs.1,000 was to be paid within 5 years whereafter the second respondent was to execute a sale deed in favour of the first respondent.
The Munsif decreed the suit only for recovery of Rs,4,850 plus pendente lite and future interest on Rs.4,000 and this order was confirmed by the Civil Judge by dismissing the appeal of respondent No.1.
A second appeal was preferred to the High Court by respondent N. 1 contending that the transfers in favour of the appellants, by respondent No. 2 were void being in contravention of Section 168 A of the U.P. Zamindari Abolition and Land Reforms Act, 1950.
The appellants contested the appeal contending that for a transfer being hit by Section 168 A of the Act should be in respect of a specific piece of land and not a share in a holding and that the transfers were of a portion of the shares of respondent No. 1 in the disputed plot.
The High Court allowed the appeal holding that the two transfers made were clearly hit by the provisions of Section 168 A(2) of the Act and that the benefit of Section 43 of the Transfer of property Act could not be availed of by the appellants as the sale deeds were void in the eye of law.
700 The appellant in their appeal to this Court contended that the sale made by respondent No. 2 to the 2nd appellant being hit by the provisions of Section 168 A of the Act, the subject matter of transfer got vested in the Government and the interest of respondent No. 2 in that part of the holding stood extinguished on the date of transfer and that the sale being void, he was left only with the subject matter of transfer, and that the respondent No. 2 having transferred that whole portion to the first appellant by sale deed such transfer being a transfer of the whole area it would be covered by the proviso under Section 168 A and as such, the sale would not be hit by the provisions of Section 168 A.
The first respondent contended that as the sale deeds in favour of the two appellants have been held to be void, the High Court rightly decreed the suit; that he having been in possession of the land and the second respondent 's fragmented sales having been found to be void, even if the land would vest in the State, the first respondent would not be divested automatically and the State has to seek possession in accordance with the law.
On the question as to what would be the effect of the two fragmented sales in favour of the appellants, setting aside the order of the High Court and remanding the matter, this Court, HELD: 1.
The U.P. Zamindari Abolition and Land Reforms Act was passed as it was considered expedient to provide for the abolition of the Zamindari system which involved intermediaries between the tiller of the soil and the State in Uttar Pradesh and for the acquisition of their rights, title and interest and to reform the law relating to land tenure consequent upon such abolition and acquisition and to make provision for other matters connected therewith.
[705E F] 2.
The original Act did not define fragment.
The definition of 'fragment ' was added by Section 2 of the U.P. Act XVIII of 1956 with a view to prevent fragmentation and promote consolidation of holdings in order to avoid uneconomic units.
[705F G] 3.
The object of the section 168 A(1) was to prevent fragmentation of land situated in a conolidated area and transfers that would result in fragmentation or further fragmentation shall be void and to such transfers, Section 167 will mutatis mutandis be applicable, when a fragment situated in a consolidated area is transferred.
If transfer of a fragment is made in favour of tenure holder who has a plot contiguous to the fragment, the purpose of law is not defeated inasmuch as it will be 701 consolidated with the contiguous plot of the transferee.
When the land held by a person in a consolidated area is already a fragment then as was provided previous to the amendment in 1961 the whole of the plot to which the fragment pertained was to be transferred.
[708F 709A] 4.
After the amendment, the invalidity and applicability of Section 167 is limited to a case where the transfer is not in favour of any such tenure holder and to the whole or so much of the plot in which the person has bhumidhar rights which pertains to fragment is thereby transferred.
If the transferor has bhumidhari rights on the whole of the fragment the whole has to be transferred.
If the person has bhumidhari rights only in a part of the plot that part on which he has bhumidhari rights can be transferred.
The part on which the person has not bhumidhari rights is not covered by the provisions not because that would not result in further fragmentation but because he had transferable bhumidhari rights only on that portion and not on the other portion.
[709A C] 5.
The substitution of the words "bhumidhar with transferable rights" for the word "bhumidhar" would not make any difference when the bhumidhar had transferable rights but would make a difference where the bhumidhar had also lands with non transferable rights.
[710C D] 6.
Under the amended provisions the interest of a bhumidhar with transferable rights in his holding or in part thereof shall be extinguished when the holding or part thereof with bhumidhar rights has been transferred or let out in contravention of the provisions of the Act.
In other words, when he had bhumidhar rights on the entire holding and the same is transferred or let out in contravention of the provisions of the Act his interest shall be extinguished.
If he had bhumidhari rights only on a part thereof and it has been transferred or let out in contravention of the provisions of the Act his interest in bhumidhari rights in that part shall be extinguished.
The reason behind the provision to make fragmentation is the need to prevent further fragmentation if the bhumidhar with his bhumidhari rights over a fragment tries to transfer the fragment, his right over the fragment is extinguished.
[710D E] 7.
In the instant case, the bhumidhar respondent No. 2 's land measuring 10 bighas, 12 biswas and 10 biswansis was a fragment.
He entered into an agreement to sell the land on 5.4.1966 and the first respondent on payment of advance of Rs.4,000 is stated to have had possession of the land.
That sale would attract the provisions of Section 702 168 A, if it resulted in transfer of the fragment.
The sales to the appellant No. 1 was dated 2.9.1966 and to appellant No. 2 was dated 21.12.1966.
These two sales would be convered by the old provisions of sections 166 and 167, which section did not deal with the case of bhumidhar but only by sirdar or asami.
But section 168 A would be attracted and the provisions of Section 167 would mutatis mutandis be applicable.
[710G 711B] 8.
The High Court did not examine the facts of the case in light of the laws prevailing at the time.
Festination justiate est noverea informateeni.
Hasty justice is step mother of misfortune.
Injustuim est nisitota lege inspecta, de una aliqua ejus particula proposita judicare vel respondere.
It is unjust to decide or respond to any particular part of a law without examining the whole of the law.
[711B, 711D E]