Input:
Special Leave Petition (Civil) No. 10326 of 1989.
From the Judgment and Order dated 1.8.1989 of the Patna High Court in C.W.J.C. No. 5768 of 1989.
R.K. Jain, R. Sharma, R.P. Sharma and Ms. Sangeeta Tripathi for the Petitioners.
The Judgment of the Court was delivered by KANIA, J.
This is one more case of an educational insti tution started in the State of Bihar without recognition applying for permission to allow the students, whom it has admitted and, from whom it has presumably recovered substan tial fees, to be allowed to appear at the ensuing examina tion on the ground that the question of its recognition has not been decided by the Government.
It appears from the judgment of the High Court that a number of similar mushroom institutions have sprung up in the State of Bihar without prior recognition, have admitted students, received fees from them and allowed them to undergo training for a sub stantial period of time without getting any recognition and thereafter tried to get permission from the Court for their students to be allowed to appear at the examination on grounds of sympathy.
This impression has been gathered from a 25 number of similar applications made to this Court in the last few months.
It is not possible to grant any such permission as prayed for because the granting of such permission would be clearly violating the provisions of the Education Act (See the judgments in S.L.P. No. 120 14 of 1987 decided on Novem ber 25, 1987 and the A.P. Christians Medical Educational Society vs Government of A.P. & Anr., ; ; What is however, unfortunate is that applications made by various educational institutions to the Government for recognition are not promptly disposed of.
In fact, we are of the view that the concerned department of the Government of Bihar should see to it that applications for recognition of educational institutions are decided promptly and where such an application is without merit, the Government should promptly reject the same and take steps to see to it that the rejection is brought to the attention of the students of the institution concerned so that they may not waste further time and money by undergoing training in that institution.
The failure of the Government to take such action would only reflect callous indifference to the inter ests of the young students to whom the Government certainly owes certain responsibilities.
We also feel that the State Government should issue advertisement through newspapers and other possible channels, if any, to ensure that students do not get misled by such unrecognised institutions into wast ing their precious time and money in undergoing training which will be of no avail to them.
We find that there ap pears to be a large number of students in the State who are misled by such institutions.
In fact, the State should consider taking such steps, criminal or civil, as open to it in law to stop such institutions and those who run them from misleading students and deceiving them.
We are informed that in the present case, the applica tion for recognition was made by the petitioners and as early as 1986 that application has not still been disposed of.
We direct that, if this so, the application should be disposed of within 4 weeks from today.
In these circumstances, we direct the State Government of Bihar to get published advertisements in at least three newspapers in that State with wide circulation warning students not to take admission in any educational institu tion which has not got recognition and making it clear that if they do so, they would be doing so at their own risk.
The advertisements to be issued within three weeks from the date of receipt of this order by the department concerned.
We direct that the 26 copies of this order be sent forthwith to the Chief Minister of Bihar, the Minister in charge of the Education Department and the Secretary of that department.
Special leave petition is dismissed with these observa tions.
In case the application of the petitioners for recog nition is granted, the Government will consider the granting of appropriate relief to the students in respect of the years for which the recognition is concerned.
R.S.S. Petition dismissed.

Output:
The petitioners in the special leave petition started, without recognition, a teachers training college in Bihar, and later applied for permission to allow its students to appear at the examination on the ground that the question of its recognition had not been decided by the Government.
The petitioners failed to get the desired relief from the High Court.
Dismissing the special leave petition, this Court, HELD: (1) A number of mushroom institutions have sprung up in the State of Bihar without getting any recognition and thereafter have tried to get the permission from courts that its students be allowed to appear at the examination on grounds of sympathy.
[24G] (2) It is not possible to grant any such permission as prayed for because the granting of such permission would be clearly violating the provisions of the Education Act.
[25B] S.L.P. No. 12014 of 1987 decided on November 25, 1987 A.P. Christians Medical Educational Society vs Government of A.P. & Anr., ; , referred to.
(3) The application for recognition in this case was made by the petitioners as early as 1986 and that applica tion has not still been disposed of.
The same should be disposed of within 4 weeks from today.
[25F] (4) The concerned department of the Government of Bihar, should see to it that applications for recognition of educa tional institutions are decided promptly and where such an application is without 24 merit, the Government should promptly reject, the same and take steps to see to it that the rejection is brought to the attention of the students of the institution concerned so that they may not waste further time and money by undergoing training in that institution.
[25C] (5) The failure of the Government to take such action would only reflect callous indifference to the interests of the young students to whom the Government certainly owes certain responsibilities.
[25D] (6) The State should consider taking such steps, Crimi nal or Civil, as open to it in law, to stop such institu tions and those who run them from misleading students and deceiving them.
[25E] (7) The State Government of Bihar shall get published advertisements in at least three newspapers in that State with wide circulation warning students not to take admission in any educational institution which has not got recognition and making it clear that if they do so, they would be doing so at their own risk.


Input:
Civil Appeal Nos.
2602 2604 of 1980.
Appeals by special leave from the Judgment and Order dated 20 6 1980 of the Madras High Court in Writ Petition Nos. 4467 of 1977, 2933 and 4793 of 1978.
Lal Narain Sinha Att.
of India for the Appellant in CA 2602/80.
Soli J. Sorabjee for the Appellant in CA 2603/80.
R. Krishnamurthy Adv.
for the appellant in CA 2604/80.
A. V. Rangam and K. Venkatawani for the Appellant in all the matters.
Y. section Chitale (Dr.), Mrs. section Ramachandran and Mukul Mudgal for Respondent Nos. 11 and 42.
P. Chidambaram and A. section Nambiyar for the Respondents.
F. section Nariman, A. V. Rangam and R. N. Sachthey for the interveners.
V. Srinivasan, A. Venkatarayana and P. N. Ramalingam for Respondent No. 45.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
Entry 23 of List II of the Seventh Schedule to the Constitution is, "Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union".
Entry 54 746 of List of the Seventh Schedule is "Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest".
Thus while 'regulation of mines and mineral development ' is ordinarily a subject for State legislation.
Parliament may, by law, declare the extent to which control of such regulation and development by the Union is expedient in the public interest, and, to that extent, it becomes a subject for Parliamentary legislation.
Parliament has accordingly enacted the .
By section 2 of the Act it is declared that it is expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals to the extent thereafter provided.
It is now common ground between the parties that as a result of the declaration made by Parliament, by section 2 of the Act, the State legislatures are denuded of the whole of their legislative power with respect to regulation of mines and mineral development and that the entire legislative field has been taken over by Parliament.
That this is the true position in law is clear from the pronouncements of this Court in The Hingir Rampur Coal Co. Ltd. & Ors.
vs The State of Orissa & Ors.
State of Orissa vs M.A., Tulloch & Co. and Baijnath Kedia vs State of Bihar & Ors.
section 3 of the , defines various expressions occurring in the Act.
section 3 (a) defines 'minor minerals ' and it includes any mineral declared to be a minor mineral by the Central Government by a notification in the Official Gazette. 'Black granite ' has been so notified by the Central Government as a minor mineral.
Section 4 to 9A are grouped under the heading 'General Restrictions on undertaking prospecting and mining operations '.
These provisions as well as Sections 10 to 13 are made inapplicable to 'minor minerals ' by section 14.
section 4 prohibits all prospecting or mining operations except under a licence or a lease granted under the Act and the rules made thereunder.
S.4A(1) enables the State Government on a request made by the Central Government in the interest of regulation of mines and mineral development to terminate a mining lease pre maturely and grant a fresh mining lease in favour of a Government Company or Corporation owned or controlled by Government.
Perhaps because s.4A(1) is inapplicable to minor minerals because of the provisions of S.14, S.4A(2) has been expressly enacted making somewhat similar provision, as in S.4A(1), in respect of 'minor minerals ' also.
S.4A(2) 747 enables the State Government, after consultation with the Central Government, if it is of opinion that it is expedient in the interest of regulation of mines and mineral development so to do, to prematurely terminate a mining lease in respect of any minor mineral and grant a fresh lease in respect of such mineral in favour of a Government Company or Corporation owned or controlled by Government.
S.5 imposes certain restrictions on the grant of prospecting licences and mining leases.
S.6 prescribes the maximum area for which a prospecting licence or mining lease may be granted.
S.7 prescribes the period for which prospecting licences may be granted or renewed.
S.8 prescribes the period for which mining leases may be granted or renewed.
S.9 provides for the payment of royalty and S.9A for the payment of dead rent.
Sections 10, 11 and 12 constitute a group of sections under the title 'Procedure for obtaining prospecting licences or mining leases in respect of land in which the minerals vest in the Government '.
S.10 provides for making applications for prospecting licences or mining leases in respect of any land in which the minerals vest in the Government.
S.11 provides for certain preferential rights in favour of certain persons in the matter of grant of mining leases.
section 12 prescribes the Register of prospecting licences and mining leases to be maintained by the State Government.
S.13 empowers the Central Government to make rules for regulating the grant of prospecting licences and mining leases.
In particular we may mention that S.13(2) (a) empowers the Central Government to make rules providing for 'the persons by whom, and the manner in which, applications for prospecting licences or mining leases in respect of land in which the minerals vest in the Government may be made and the fees to be paid therefor".
S.13(2) (f), we may add, empowers the Central Government to make rules providing for 'the procedure for obtaining a prospecting licence or a mining lease in respect of any land in which the minerals vest in a person other than the Government and the terms on which, and the conditions subject to which, such a licence or lease may be granted or renewed '.
S.14 makes the provisions of Sections 4 to 13 inapplicable to minor minerals.
S.15 empowers the State Government to make rules for regulating the grant of quarry leases, mining leases and other mineral concessions in respect of minor minerals and purposes connected therewith.
S.15(3) provides for the payment of royalty in respect of minor minerals at the rate prescribed by the rules framed by the State Government.
S.16 provides for the modification of mining leases granted before October 25, 1949.
S.17 enables the Central Government, after consultation with the State Government to undertake prospecting or mining operations in any area not already held under any prospecting licence or mining lease, in which event the Central 748 Government shall publish a notification in the official Gazette giving the prescribed particulars.
The Central Government may also declare that no prospecting licence or mining lease shall be granted in respect of any land specified in the notification.
S.18 casts a special duty on the Central Government to take all necessary steps for the conservation and development of minerals in India.
Sections 19 to 33 are various miscellaneous provisions with which we are not now concerned.
Pursuant to the power vested in it under S.15 of the , the Government of Tamil Nadu has made the Tamil Nadu Minor Mineral Concession Rules, 1959.
Section II of the rules consisting of rules 3 to 16 is entitled "Government lands in which the minerals belong to the Government".
Rule 8 prescribes the procedure for the lease of quarries to private persons.
The ordinary procedure is to publish a notice in the District Gazette inviting applications, thereafter to hold an auction and finally to grant a lease to the highest bidder.
Rule 8A which was introduced by way of an amendment in 1972, provides for a special procedure for the sanctioning of leases in favour of applicants who require the minerals for their existing industries or who have an industrial programme for the utilisation of the mineral in their own industry.
Rule 8B was introduced in 1975 making special provision for the grant of leases for quarrying black granite.
The rule is as follows: "8 B. Lease of quarries in respect of black granite to private persons (1) Notwithstanding anything to the contrary contained in rules 8 and 8A, the authority competent to grant leases in respect of quarrying black granite shall be the State Government.
(2) An application for the grant of a quarrying lease in respect of any land shall be made to the Collector of the District concerned in the prescribed form in triplicate and shall be accompanied by a fee of Rs. 100/ .
The Collector shall after scrutiny, forward the application along with his remarks to the Director of Industries & Commerce who shall technically scrutinise the industrial programme given by the applicant and forward the application with his remarks to the Government." "(G. O. Ms. No. 993 Industries dt.
25 8 1975".
Rule 8 C was introduced by G. O. Ms. No. 1312 Industries dated December 2, 1977.
By this rule leases for quarrying black granite 749 in favour of private persons are banned.
Leases can only be granted in favour of a Corporation wholly owned by the State Government.
It is the vires of this rule which was under challenge before the High Court and is also under challenge now.
It will be useful to extract the same.
It is as follows: "8 C Lease of quarries in respect of black granite to Government Corporation, etc.
(1) Notwithstanding anything to the contrary contained in these rules, on and from 7th December, 1977 no lease for quarrying black granite shall be granted to private persons.
(2) The State Government themselves may engage in quarrying black granite or grant leases for quarrying black granite in favour of any corporation wholly owned by the State Government.
Provided that in respect of any land belonging to any private person, the consent of such person shall be obtained for such quarrying or lease".
Rule 9 provides for renewal of leases and it is in the following terms: "9.
Renewal of lease. (1) The Collector may on application renew for a further period not exceeding the period for which the lease was originally granted in each case if he is satisfied that (i) such renewal is in the interests of mineral development, and (ii) the lease amount is reasonable in the circumstances of the case.
(2) Every application for renewal shall be made to Collector, sixty days prior to the date of expiry of the lease: Provided that a lease, the period of which exceeds ten years shall not be renewed except with the sanction of the Director of Industries and Commerce".
A proviso was added to rule 9(2) in 1975 and it said: "provided also that the renewal for quarrying black granite shall be made by the Government".
Several persons who held leases for quarrying black granite belonging to the State Government and whose leases were about to expire, applied to the Government of Tamil Nadu for renewal of their leases.
In some of the cases applications were made long prior 750 to the date of G. O. Ms. No. 1312 by which Rule 8 C was introduced.
Some applications were made after Rule 8 C came into force.
There were also some applications for the grant of fresh leases for quarrying black granite.
All the applications were dealt with after Rule 8 C came into force and all of them were rejected in view of Rule 8C.
Several Writ Petitions were filed in the High Court questioning the vires of Rule 8C on various grounds.
Apart from canvassing the vires of Rule 8C, it was contended that Rule 8C did not apply to grant of renewals of lease at all.
It was also argued that in any event, in those cases in which the applications for renewal had been made prior to the coming into force of Rule 8C, their applications should have been dealt with without reference to Rule 8C.
The Madras High Court while not accepting some of the contentions raised on behalf of the applicants, struck down Rule 8C on the ground that it exceeded the rule making power given to the State Government under S.15 which, it was said, was only to regulate and not to prohibit the grant of mining leases.
As a consequence all the applications were directed to be disposed of without reference to Rule 8C.
It was also observed that even if Rule 8C was valid it applied only to the grant of fresh leases and not to renewals.
It was also held that it was not open to the Government to keep the applications pending for a long time and then to dispose them of on the basis of a rule which had come into force later.
The State Government has come in appeal against the judgment of the Madras High Court while the respondent applicants have tried to sustain the judgment of the Madras High Court on grounds which were decided against them by the Madras High Court.
The learned Attorney General who appeared for the Government of Tamil Nadu submitted that the approach of the High Court was vitiated by its failure to notice the crucial circumstance that the minerals belonged to the Government and the applicants had no vested or indefeasible right to obtain a lease or a renewal to quarry the minerals.
There were good reasons for banning the grant of leases to quarry black granite to private parties and in the light of those reasons the Government could not be compelled to grant leases which would result in the destruction of the mineral resources of the country.
Shri K. K. Venugopal, learned counsel who led the argument for the respondents submitted that the question of ownership of the minerals was irrelevant.
In making the rules the State Government was acting as a delegate and not as the owner of the minerals.
He submitted that it was not open to the State Government to exercise its subordinate legislative function in a manner to benefit itself as owner of the minerals, nor was it open to the State Government to create a monopoly by such means 751 According to Shri Venugopal creation of a monopoly in the State was essentially a legislative function and was incapable of delegation.
It was claimed that there was violation of Articles 301 and 303 of the Constitution.
It was further claimed that section 15 of the , enabled the State Government to make rules to regulate the grant of leases and not to prohibit them.
In any case it was said that Rule 8G had no application to renewals and that in any event it would not have the effect of affecting applications made more than 60 days before it came into force.
Rivers, Forests, Minerals and such other resources constitute a nation 's natural wealth.
These resources are not to be frittered away and exhausted by any one generation.
Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way.
It is in the interest of mankind.
It is in the interest of the Nation.
It is recognised by Parliament.
Parliament has declared that it is expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals.
It has enacted the .
We have already referred to its salient provisions.
section 18, we have noticed, casts a special duty on the Central Government to take necessary steps for the conservation and development of minerals in India.
section 17 authorises the Central Government itself to undertake prospecting or mining operations in any area not already held under any prospecting licence or mining lease.
S.4A empowers the State Government on the request of the Central Government, in the case of minerals other than minor minerals, to prematurely terminate existing mining leases and grant fresh leases in favour of a Government Company or Corporation owned or controlled by Government, if it is expedient in the interest of regulation of mines and mineral development to do so.
In the case of minor minerals, the State Government is similarly empowered, after consultation with the Central Government.
The public interest which induced Parliament to make the declaration contained in section 2 of the Mines & Minerals (Regulation and Development) Act, 1957.
has naturally to be the paramount consideration in all matters concerning the regulation of mines and the development of minerals.
Parliament 's policy is clearly discernible from the provisions of the Act.
It is the conservation and the prudent and discriminating exploitation of minerals, with a view to secure maximum benefit to the community.
There are clear sign posts to lead and guide the subordinate legislating authority in the matter of the making of rules.
Viewed in the light shed by the other provisions of the Act, particularly sections 4A, 17 and 18 752 it cannot be said that the rule making authority under section 15 has exceeded its powers in banning leases for quarrying black granite in favour of private parties and in stipulating that the State Government themselves may engage in quarrying black granite or grant leases for quarrying black granite in favour of any corporation wholly owned by the State Government.
To view such a rule made by the Subordinate legislating body as a rule made to benefit itself merely because the State Government happens to be the subordinate legislating body, is, but, to take too narrow a view of the functions of that body.
The reasons that prompted the State Government to make Rule 8 C were explained at great length in the common counter affidavit filed on behalf of the State Government before the High Court.
We find no good reason for not accepting the statements made in the counter affidavit.
It was said there: "I submit that the leases for black granite are governed by the Tamil Nadu Minor Mineral Concession Rules 1959 under which originally there was scope for auctioning of quarries of minor minerals.
In amendment issued in the G.O. dated 6 12 1972.
under Rule 8 A it was indicated that the Collector may sanction leases in favour of applicants who are having an industrial programme to utilise the minerals in their own industry.
This provision is applicable to all minerals including black granites.
However, it was found that there were several cases where lessees who obtained the black granite areas on lease by auction were not quarrying in a systematic and planned manner taking into consideration the welfare and safety measures of the workers as well as the conservation of minerals.
Even after the introduction of the amendment under Rule 8 A in most cases, the industry set up was of a flimsy nature more to circumvent the rule than to really introduce industry including mechanised cutting and polishing.
The lessees were also interested only in obtaining the maximum profit in the shortest period of time without taking into consideration the proper mining and development of the mineral.
There was also considerable wastage of new materials due to wasteful mining.
Therefore, Government issued a further amendment as Rule 8 B wherein the competent authority to grant leases in respect of the quarrying black granite was transferred from the Collector to the State Government level.
They also prescribed a standard form and an application fee to be paid with the application.
The amendment states that the Director of Industries and Commerce shall technically 753 scrutinise the industrial programme given by the applicant while forwarding the same to Government.
At the same time, in the G.O. issued along with amendment, it was stated that if any of the State Government Organisations like Tamil Nadu Small Industries Corporation Limited, Tamil Nadu small Industries Development Corporation Limited, Tamil Nadu Industrial Development Corporation Limited is interested to obtain a lease for black granite in a particular area, preference will be given to Government undertaking over other private entrepreneurs for granting the leases applied for by them.
However, in spite of these amendments to regulate the grant of mining lease, there were a large number of lessees (exceeding 140), who were engaged in mining without proper technical guidance or safety measures etc.
for the workers.
These lessees made a strong representation to the then Government in 1976 expressing that though they had given assurance to set up industries to use the granites they were not able to do so far various reasons.
They also represented that they should be allowed to export the raw blocks of black granites.
Therefore, Government had issued a Government Order dated 15 2 1977 relating to relaxation of the ban of export of raw blocks and provision for setting up a polishing or finishing unit was not made a pre requisite.
They have also stated that the terms and conditions for the existing losses would remain in force.
However, on an examination of the performance of the lessees over the past several years, it has been found that excepting in a very few cases, none of the lessees had set up proper industries or developed systematic mining of the quarries.
The exports continue to be mainly on the raw black granite materials and not out and polished slabs.
A large number of the leases were not operating either due to speculation or lack of finance from the lessees.
Therefore, Government decided that there should be no further grant of lease to private entrepreneurs for black granite.
This was mentioned in G.O.Ms.
No. 1312 Industries dated 2 12 1977.
We are satisfied that Rule 8C was made in bonafide exercise of the rule making power of the State Government and not in its misuse to advance its own self interest.
We however guard ourselves against being understood that we have accepted the position that making a rule which is perfectly in order to be considered a misuse of the rule making power, if it advances the interest of a State, which really means the people of the State.
754 One of the submissions on behalf of the respondents was that monopoly was a distinct legislative subject under entry 21 of List III of the Seventh Schedule to the Constitution and therefore monopoly, even in favour of a State Government can only be created by plenary and not subordinate legislation.
Parliament not having chosen to exercise its plenary power it was not open to the subordinate legislating body to create a monopoly by making a rule.
Our attention was invited to H. C. Narayanappa & Ors.
vs State of Mysore & Ors.(1) where it was held that the expression 'Commercial and industrial monopolies ' in entry 21 of List III of the Seventh Schedule to the Constitution was not confined to legislation to control of monopolies but was wide enough to include grant or creation of commercial or industrial monopolies in favour of the State Government, also We are unable to agree with Shri Venugopal 's submission.
The very decision cited by him furnishes the answer.
The validity of a scheme for nationalisation of certain routes made pursuant to the powers conferred by Chapter IVA of the Motor Vehicles Act was under attack in that case.
One of the grounds of attack was that "by Chapter IVA of the , "Parliament had merely attempted to regulate the procedure for entry by the States into the business of motor transport in the State, and in the absence of legislation expressly undertaken by the State of Mysore in that behalf, that State was incompetent to enter into the arena of motor transport business to the exclusion of private operators;" Sustenance for the submission was sought to be drawn from the language of article 19(6) (ii) which provides that nothing in article 19(1) (g) shall 'prevent the State from making any law relating to ' 'the carrying on by the State, or by a Corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise '.
The argument was that the State or a Corporation owned or controlled by the State could carry on a trade, business, industry or service to the exclusion, complete or partial, of citizens, only if the State made a law relating to it.
The argument was repelled by the Court in these words: "The plea sought to be founded on the phraseology used in article 19(6) that the State intending to carry on trade or business must itself enact the law authorising it to carry on trade or business is equally devoid of force.
The expression 'the State ' as defined in article 12 is inclusive of the Government and Parliament of India and the Government and the Legisla 755 ture of each of the States.
Under entry No. 21 of the Concurrent List, the Parliament being competent to legislate for creating commercial or trading monopolies, there is nothing in the Constitution which deprives it of the power to create a commercial or trading monopoly in the constituent States.
Article 19(6) is a mere saving provision: its function is not to create a Power but to immunise from attack the exercise of legislative power falling within its ambit.
The right of the State to carry on trade or business to the exclusion of others does not arise by virtue of article 19(6).
The right of the State to carry on trade or business is recognised by article 298; authority to exclude competitors in the field of such trade or business is conferred on the State by entrusting power to enact laws under entry 21 of List III of the Seventh Schedule, and the exercise of that power in the context of fundamental rights is secured from attack by article 19(6).
In any event; the expression 'law ' as defined in article 13(3) (a) includes any ordinance, order, bye law, rule, regulation, notification, custom, etc., and the scheme framed under s.68C may properly be regarded as 'law ' within the meaning of article 19(6) made by the State excluding private operators from notified routes or notified areas, and immune from the attack that it infringes the fundamental right guaranteed by article 19(1) (g)".
Earlier in Rai Sahib Ram Jawaya Kapur & Ors.
vs The State of Punjab, before the Seventh Amendment of the Constitution by which the present Article 298 was substituted for the old Article, the question arose whether it was beyond the competence of the executive Government to carry on a business without specific legislature sanction.
The answer was that it was not.
What was said by the Court in that case was incorporated in the Seventh Amendment of the Constitution.
In that case the facts were that the State of Punjab, by a series of executive orders had established for itself a monopoly in the business of printing and selling textbooks for use in schools.
The argument that legislative sanction was necessary to enable the State Government to carry on the business of printing and publishing text books was repelled and it was held that no fundamental right of the petitioners who had invoked the jurisdiction of the Court had been infringed.
Another of the submissions of the learned counsel was that G.O.Ms No. 1312 dated December 2, 1977 involved a major change of policy, which was a legislative function and therefore beyond the competence 756 of a subordinate legislating body.
We do not agree with the submission.
Whenever there is a switch over from private sector ' to 'public sector ' it does not necessarily follow that a change of policy requiring express legislative sanction is involved.
It depends on the subject and the statute.
For example, if a decision is taken to impose a general and complete ban on private mining of all minor minerals, such a ban may involve the reversal of a major policy and so it may require Legislative sanction.
But if a decision is taken to ban private mining of a single minor mineral for the purpose of conserving it, such a ban, if it is otherwise within the bounds of the authority given to the Government by the Statute, cannot be said to involve any change of policy.
The policy of the Act remains the same and it is, as we said, the conservation and the prudent and discriminating exploitation of minerals, with a view to secure maximum benefit to the community.
Exploitation of minerals by the private and/or the public sector is contemplated.
If in the pursuit of the avowed policy of the Act, it is thought exploitation by the public sector is best and wisest in the case of a particular mineral and, in consequence, the authority competent to make the subordinate legislation makes a rule banning private exploitation of such mineral, which was hitherto permitted we are unable to see any change of policy merely because what was previously permitted is no longer permitted.
One of the arguments pressed before us was that Sec.
15 of the authorised the making of rules for regulating the grant of mining leases and not for prohibiting them as Rule 8 C sought to do, and, therefore, Rule 8 C was ultra vires Act, section 15.
Well known cases on the subject right from Municipal Corporation of the City of Toronto vs Virgo and Attorney General for the Dominion General for the Dominion and the Distillers and Brewers Association of Ontario upto State of Uttar Pradesh & Ors.
vs Hindustan Aluminium Corporation Ltd. & Ors., were brought to our attention.
We do not think that 'Regulation ' has the rigidity of meaning as never to take in Prohibition '.
Much depends on the context in which the expression is used in the Statute and the object sought to be achieved by the contemplated regulation.
It was observed by Mathew J. in G. K. Krishnan etc.
vs The State of Tamil Nadu & Anr.
, "the word 'regulation has no fixed connotation.
Its meaning differs according to the nature of the thing to which it is applied".
In modern statutes concerned as they are with economic and social activities, 'regulation ' 757 must, of necessity, receive so wide an interpretation that in certain situations, it must exclude competition to the public sector from the private sector.
More so in a welfare State.
It was pointed out by the Privy Council in Commonwealth of Australia vs Bank of New South Wales(1) and we agree with what was stated therein that the problem whether an enactment was regulatory or something more or whether a restriction was direct or only remote or only incidental involved, not so much legal as political, social or economic consideration and that it could not be laid down in no circumstances could the exclusion of competition so as to create a monopoly, either in a State or Commonwealth agency, to be justified.
Each case, it was said, must be judged on its own facts and in its own setting of time and circumstances and it might be that in regard to some economic activities and at some stage of social development, prohibition with a view to State monopoly was the only practical and reasonable manner of regulation.
The statute with which we are concerned, the Mines and Minerals (Development and Regulation) Act, is aimed, as we have already said more than once, at the conservation and the prudent and discriminating exploitation of minerals.
Surely, in the case of a scarce mineral, to permit exploitation by the State or its agency and to prohibit exploitation by private agencies is the most effective method of conservation and prudent exploitation.
If you want to conserve for the future, you must prohibit in the present.
We have no doubt that the prohibiting of leases in certain cases is part of the regulation contemplated by Sec. 15 of the Act.
The submission of the learned counsel that the impugned rule contravened Articles 301 and 303 of the Constitution is equally without force.
Now, 'the restrictions freedom from which is guaranteed by article 301 would be such restrictions as directly and immediately restrict or impede the free flow or movement of trade" (Atiabari Tea Co. Ltd. vs State of Asssam & Ors.).(2) And, "regulatory measures or measures imposing compensatory taxes for the use of trading facilities do not come within the purview of restrictions contemplated by article 301".
"They are excluded from the purview of the provisions of Part XIII of the Constitution for the simple reason that they do not hamper, trade, commerce or inter course but rather facilitate them" The Automobile Transport Rajasthan Ltd. vs State of Rajasthan & Ors.(3).
The is, without doubt a regulatory measure, Parliament having enacted it for the express purpose of "the regulation of mines and the development of minerals".
The Act and the rules 758 properly made thereunder are, therefore, outside the purview of article 301.
Even otherwise article 302 which enables Parliament, by law, to impose such restrictions on the freedom of trade, commerce or intercourse between one State and another or within any part of the territory of India as may be required in the public interest also furnishes an answer to the claim based on the alleged contravention of article 301.
The is a low enacted by Parliament and declared by Parliament to be expedient in the public interest.
Rule 8C has been made by the State Government by notification in the official Gazette, pursuant to the power conferred upon it by Sec. 15 of the Act.
A statutory rule, while ever subordinate to the parent statute, is, otherwise, to be treated as part of the statute and as effective. "Rules made under the Statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act and are to be judicially noticed for all purposes of construction or obligation. (State of U.P. & Ors.
vs Babu Ram Upadhya)(1); (See also Maxwell; Interpretation of Statutes, 11th Edn.
49 50).
So, Statutory rules made pursuant to the power entrusted by Parliament are law made by Parliament within the meaning of article 302 of the Constitution.
To hold otherwise would be to ignore the complex demands made upon modern legislation which necessitate the plenary legislating body to discharge its legislative function by laying down broad guidelines and standards, to lead and guide as it were, leaving it to the subordinate legislating body to fill up the details by making necessary rules and to amended the rules from time to time to meet unforeseen and unpredictable situations, an within the framework of the power entrusted to it by the plenary legislating body.
State of Mysore vs H. Sanjeeviah(2) was cited to us to show that rules did not become part of the statute.
This was case where by reference to Sec. 77 of the Mysore Forest Act which declared the effect of the rules, it was held that the rules when made did not become part of the Act.
That was apparently because of the specific provisions of Sec. 77 which while declaring that the rules would have the force of law stopped short of declaring that they would become part of the Act.
In the absence of any express provision, as now, the ordinary rule as enunciated in Maxwell and State of Uttar Pradesh & Ors.
vs Babu Ram Upadhya (supra) would perforce apply.
The next question for consideration is whether Rule 8C is attracted when applications for renewal of leases are dealt with.
The argument was that Rule 9 itself laid down the criteria for grant of renewal of leases and therefore rule 8C should be confined, in its application, to 759 grant of leases in the first instance.
We are unable to see the force of the submission.
Rule 9 makes it clear that a renewal is not to be obtained automatically, for the mere asking.
The applicant for the renewal has, particularly, to satisfy the Government that the renewal is in the interests of mineral development and that the lease amount is reasonable in the circumstances of the case.
These conditions have to be fulfilled in addition to whatever criteria is applicable at the time of the grant of lease in the first instance, suitably adapted, of course, to grant of renewal.
Not to apply the criteria applicable in the first instance may lead to absurd results.
If as a result of experience gained after watching the performance of private entrepreneurs in the mining of minor minerals it is decided to stop grant of leases in the private sector in the interest of conservation of the particular mineral resource, attainment of the object sought will be frustrated if renewal is to be granted to private entrepreneurs without regard to the changed outlook.
In fact, some of the applicants for renewal of leases may themselves be the persons who are responsible for the changed outlook.
To renew leases in favour of such persons would make the making of Rule 8C a mere exercise in futility.
It must be remembered that an application for the renewal of a lease is, in essence an application for the grant of a lease for a fresh period.
We are, therefore, of the view that Rule 8C is attracted in considering applications for renewal of leases also.
Another submission of the learned counsel in connection with the consideration of applications for renewal was that applications made sixty days or more before the date of G.O.Ms.
No. 1312 (2 12 1977) should be dealt with as if Rule 8C had not come into force.
It was also contended that even applications for grant of leases made long before the date of G.O.Ms.
No. 1312 should be dealt with as if Rule 8C had not come into force.
The submission was that it was not open to the Government to keep applications for the grant of leases and applications for renewal pending for a long time and then to reject them on the basis of Rule 8C notwithstanding the fact that the applications had been made long prior to the date on which Rule 8C came into force.
While it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable tune clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application.
None has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions.
In the absence 760 of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application.
We are, therefore, unable to accept the submission of the learned counsel that applications for the grant of renewal of leases made long prior to the date of G.O.Ms.
No. 1312 should be dealt with as if Rule 8C did not exist.
In the view that we have taken on the several questions argued before us all the appeals arising out of applications for the grant or renewal of leases for quarrying black granite in Government lands are allowed and the Writ Petitions filed in the High Court are dismissed.
Special leave is granted in cases in which leave had not been previously granted.
The appeals are allowed and disposed of in the same manner.
There are, however, a few appeals in which the applications were not for the grant or renewal of leases to quarry black granite in Government lands but were for permission to quarry black granite in Patta lands in which the right to minerals belonged to the applicants private owners themselves.
Apart from the fact that Rule 8C occurs in a group of Rules in Section II, which bears the head "Government lands in which the minerals belong to the Government" while the rules relating to lands in which the right to minerals belongs to private owners are dealt with in Section III.
The language of Rule 8C is clear that it cannot have any application to lands in which the right to minerals belongs to the applicants themselves.
Rule 8C is only concerned with leases for quarrying black granite and it cannot, therefore, have any application to cases where no lease is sought from the Government.
In the case of lands in which the right to minerals belongs to private owners and those owners seek permission to quarry black granite the applications will have to be dealt with under the relevant rules in Sec.
III of the Tamil Nadu Minor Mineral Concession Rules.
Rule 8C, it may be noted, does not impose a general ban on quarrying black granite but only imposes a bar on the grant of leases of quarrying black granite.
Appeals and Special Leave Petitions which arise out of applications for the grant of permission to quarry black granite in the Patta lands belonging to the applicants themselves, have therefore, to be dismissed.
The result is, Special Leave Petition Nos.
9257, 9259, 9260, 9271, 9273 to 9282 and 9284 of 1980 are dismissed and Special Leave Petition Nos 9234 to 9248, 9250 to 9256, 9258, 9261 to 9270,9272,9283,9285,9286,9288,9289 and 9290 of 1980 are granted and Appeals allowed.
Civil Appeal Nos. 2602 to 2604 of 1980 are allowed.
There will be no order as to costs.
N.K.A. Ordered accordingly.

Output:
The Mines and Minerals (Regulation & Development) Act, 1957 (Central Act) was enacted in the public interest to enable the Union to take under its control the regulation of mines and the development of minerals.
Exercising its power under this Act, the Central Government declared by a notification that black granite was a minor mineral.
Exercising power vested in it by section 15 of the Act, the State Government made the Tamil Nadu Minor Mineral Concession Rules, 1959.
Rule 8 of the Rules prescribes the procedure for lease of quarries to private persons.
By rule 8 C, introduced in 1977, leases for quarrying black granite in favour of private persons were banned.
Sub rule (2) of this rule enacts that the State Government themselves may engage in quarrying black granite or grant leases for quarrying black granite in favour of any corporation wholly owned by the State Government.
Several applications for the grant of fresh leases as well as for the renewal of leases for quarrying black granite belonging to the State Government were submitted to the State Government, some prior to the introduction of rule 8C and some after the rule came into force.
The State Government considered all the applications and rejected all of them in view of rule 8C.
The respondents filed writ petition questioning the vires of Rule 8 C on various grounds.
The High Court struck down Rule 8 C on the ground that it exceeded the rule making power given to the State Government and held that it was not open to the appellant Government to keep the applications pending for a long time and then to dispose them of on the basis of a rule which had come into force later.
As a result all the applications were disposed of without reference to rule 8 C.
The appellant contended that: (I) The approach of the High Court was vitiated by its failure to notice the crucial circumstance that the minerals belonged to the Government, (II) The respondents had no vested or indefeasible right to obtain a lease or a renewal to quarry the minerals, (III) There were good reasons for banning the grant of lease to quarry black granite to private parties and (IV) The Government could not be compelled to grant leases which would result in the destruction of the mineral resources of the country.
On behalf of the respondent it was submitted that (I) the question of ownership of the minerals was irrelevant, (II) It was not open to the appellant 743 to exercise its subordinate legislative function in a manner to benefit itself as owner of the minerals, nor was it open to the appellant to create monopoly by such means, (III) There was violation of articles 301 and 303 of the Constitution, (IV) Rule 8 C had no application to renewals and (V) That in any event it would not have the effect of affecting applications made more than 60 days before it came into force.
Accepting the appeals, it was ^ HELD: Rule 8 C was made in bonafide exercise of the rule making power of the Appellant Government and not in its misuse to advance its own self interest.
Making a rule which is perfectly in order is not to be considered a misuse of the rule making power, if it advances the interest of State, which really means the people of the State.
Rivers, forests, minerals and as such other resources constitute a nation 's natural wealth.
These resources are not to be frittered away and exhausted by any one generation.
Every generation owes a duty to all succeeding generations to develop & conserve the natural resources of the nation in the best possible way.
It is in the interest of mankind.
It is in the interest of the Nation.
It is recognised by Parliament.
Parliament has declared that it is expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals.
[751C D, 753G H] 2.
The Public interest which induced Parliament to make the declaration contained in S.2 of the Mines & Minerals (Regulation and Development) Act, 1957 has naturally to be the paramount consideration in all matters concerning the regulation of Mines & Minerals.
Parliament 's Policy is clearly discernible from the provisions of the Act.
It is the conservation and the prudent and discriminating exploitation of minerals, with a view to secure maximum benefit to the community.
There are clear sign posts to lead and guide the subordinate legislating authority in the matter of the making of rules.
[751G H] 3.
The other provisions of the Act, particularly sections 4A, 17 and 18, indicate that the rule making authority under S.15 has not exceeded its powers in banning leases for carrying black granite in favour of private parties and in stipulating that the State Government themselves may engage in quarrying black granite or grant leases for quarrying black granite in favour of any corporation wholly owned by the State Government.
To view such a rule made by the Subordinate legislating body as a rule made to benefit itself merely because the State Government happens to be the subordinate legislating body is, but, to take too narrow a view of the functions of that body.
[751H, 752A B] H. C. Narayanappa & Ors.
vs State of Mysore & Ors.
; @ 745, 752 753 referred to.
Whenever there is a switch over from 'private sector ' to 'public sector ' it does not necessarily follow that a change of policy requiring express legislative sanction is involved.
It depends on the subject and the statute.
But if a decision is taken to ban private mining of a single minor mineral for the purpose of conserving it, such a ban, if it is otherwise within the bounds of the authority given to the Government by the Statute, cannot be said to involve any change of policy.
The policy of the Act remains the same and it is, the conservation and the prudent and discriminating exploitation of 744 minerals, with a view to secure maximum benefit to the community.
Exploitation of minerals by the private and/or the public sector is contemplated.
If in the pursuit of the avowed policy of the Act, it is thought exploitation by the public sector is best and wisest in the case of a particular mineral and, in consequence, the authority competent to make the subordinate legislation makes a rule banning private exploitation of such mineral, which was hitherto permitted.
There is no change of policy merely because that was previously permitted is no longer permitted.
[756A D] Municipal Corporation of the City of Toronto vs Virgo , Attorney General for Ontario vs Attorney General for the Dominion and the Distillers and Brewers Association, , State of Uttar Pradesh and Others vs Hindustan Aluminium Corporation Ltd. and Ors., ; , G. K. Krishnan etc.
vs The State of Tamil Nadu and Anr. etc.
[1975] 2 SCR 715 @ 721, Commonwealth of Australia vs Bank of New South Wales referred to.
The restrictions, freedom from which is guaranteed by article 301 would be such restrictions as directly and immediately restrict or impede the free flow or movement of trade.
The Act and the rules properly made thereunder are, therefore, outside the purview of article 301.
Even otherwise article 302 which enables Parliament, by law, to impose such restrictions on the freedom of trade, commerce or intercourse between one State and another or within any part of the territory of India as may be required in the public interest also furnishes an answer to the claim based on the alleged contravention of article 301.
[757F H, 758A B] 7.
The Mines and Minerals (Regulation and Development) Act is a law enacted by Parliament and declared by Parliament to be expedient in the public interest.
Rule 8 C has been made by the appellant Govt.
by notification in the official Gazette, pursuant to the power conferred upon it by sec.
15 of the Act.
A statutory rule, while ever subordinate to the parent statute, is, otherwise, to be treated as part of the statute and as effective. "Rules made under the Statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the act and are to be judicially noticed for all purposes of construction or obligation.
[758B G] Atiabari Tea Co. Ltd. vs State of Assam & Ors. ; The Automobile Transport Rajasthan Ltd., vs State of Rajasthan & Ors.
[1963] 1 SCR 491 and State of U.P. & Ors.
vs Babu Ram Upadhya ; , referred to.
Rule 9 makes it clear that a renewal is not to be obtained automatically, for the mere asking.
The applicant for the renewal has, particularly, to satisfy the Government that the renewal is in the interests of mineral development and that the lease amount is reasonable in the circumstances of the case.
These conditions have to be fulfilled in addition to whatever criteria is applicable at the time of the grant of lease in the first instance, suitably adapted, of course, to grant of renewal.
Not to apply the criteria applicable in the first instance may lead to absurd results.
Therefore rule 8 C is attracted in considering applications for renewal of leases also.
[759A D] 9.
While the applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed 745 of in a reasonable time clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application.
No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions.
In the absence of any vested rights in any one, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application.
[759G H, 760A] 10.
The language of Rule 8 C is clear that it can not have any application to lands in which the right to minerals belongs to the applicants themselves.
In the case of lands in which the right to minerals belongs to private owners and those owners seek permission to quarry black granite the applications will have to be dealt with under the relevant rules in Sec.
III of the Tamil Nadu Minor Mineral concession Rules.
Rule 8 C does not impose a general ban on quarrying black granite but only imposes a bar on the grant of leases for quarrying black granite.
[760D F]


Input:
ivil Appeals Nos.
1700 & 1827 and 1021 of 1973.
Appeals by special leave from the judgment and orders dated the 17 7 1972, S 6 1972 and 8 8 1972 of the Mysore High Court in W.P.S NOS.
1921/1969/,2869/1967 & 3815/69 respectively.
L. N. Sinha, Solicitor General of India, M. Veerappa, Altaf Ahmad, for the appellants (in Civil Appeal No. 1700/73).
A. K. Sen, K. N. Bhat, for respondents (1 6 & 8 10) M. Veerappa & Altaf Ahmad, for the appellant.
K. N. Bhat, for respondents 1 7 M. Veerappa, for the appellants.
R. B. Datar, Jayashree Wad and Rajen Yashpaul, for the respondent.
1700 & 1827 of 1973 MATHEW J. We take up for consideration Civil Appeal No. 1827 f 1973.
The respondents are the owners of the lands in question.
371 They were sought to be acquired for the Regional Engineering College at the instance of the Education department of the State of Mysore.
In a notification under section 4 of the Land Acquisition Act (hereinafter called the Act) dated 5 1 1960 and published in the Mysore Gazette dated 5 5 1960, it was stated that in view of the urgency of the cases, the provisions of section SA of the Act shall not apply to the case.
The respondents challenged the notification in a writ petition (No. 768 of 1960).
When the writ petition came up for final disposal, a memo was produced on behalf of the State Government and the Court, On the basis of the Memo, dismissed the writ petition.
The memo was to this effect: '`The respondent agrees to modify the impugned notification issued under Section 4(1) read with Section 17 of the Land Acquisition Act and to give an opportunity to the petitioner of being heard under Section 5 A of the Act.
Hence the relief sought for by the petitioner becomes unnecessary.
" The Special Land Acquisition officer, Mangalore, issued notices to the respondents stating that the respondents will be given opportunity to file Objections under section 5A of the Act pursuant to the order in Writ Petition No. 768 of 1960.
The respondents filed their objections and, after an inquiry, the Land Acquisition officer sent his report to the Government.
The Government considered the report and over ruled the objections.
This was followed by a notification under section 6 of the Act.
The respondents challenged the above notification as well as the notification under section 4 by a writ petition in the High Court.
The respondents attacked the validity of the notification on the ground that the Education Department at whose instance the land was sought to be acquired was not given notice as required under rule 3(b) of the Madras Land Acquisition Rules as in force in the Madras area of the State of Mysore at the time of inquiry under section 5A and that since the requirement of notice as enjoined by rule 3(b) was mandatory, the failure to comply with that requirement rendered the notifications under sections 4 and 6 of the Act invalid.
The High Court by its order upheld the contention of the respondents and quashed the notifications issued under section 4 and section 6 of the Act.
It is against this order that the appeal has been filed by special leave by the State of Karnataka and the Special Land Acquisition officer, Mangalore.
The only point which arises for consideration is whether the pro visions of rule 3(b) were mandatory and therefore the failure to issue the notice to the department concerned as enjoined by the rule was fatal to the validity of the notifications under sections 4 and 6 of the Act.
The reasons which impelled the High Court to come to that conclusion were, if the Department to which a notice is issued files any reply by way of answer to the objections, the objector will know what the Department has stated by way of reply and, at the stage 372 Of hearing of objections, he (the objector) may adduce evidence or A address arguments to meet what has been stated in such reply, and that the objectors will have an opportunity of urging before the Government that the reasons given by the Department in the reply to the objections should not be accepted.
Rule 3 reads: "R. 3 Hearing of objection: (a) If a statement of 13 objections (is?) filed after the due date or by a person who is not interested in the land it shall be summarily rejected.
(b) If any objections are received from a person interested in the land and within the time prescribed in sub section ( 1) of s 5A, the Collector shall fix a date for hearing the objections and give notice thereof to the objector as well as to the department or company requiring the land, where such department is not the Revenue Department; Copies of the objections shall also be forwarded to such department or company.
The department or company may file on or before the date fixed by the collector a statement by way of answer to the objections and may also depute a representative to attend the enquiry.
" l) The learned Solicitor General, appearing on behalf of the appellants submitted that rule 3(b) is inconsistent with section 5A(2) or tilt: reason that section 5A(2) itself provides for making further inquiry which the Collector thinks necessary after considering the objections filed by the owner or the person interested in the land and to read rule 3(b) as casting a mandatory duty upon him to give notice of the objection to the department requiring the land and to consider the answer to the objection, if any, filed by the Department would be contrary to the section.
The argument was that when sub section (2) of section 5A provides for further inquiry in the discretion of the Collector a rule making it mandatory that the Deputy Commissioner (the Collector) should give notice of the objection to the department concerned and consider its answer to the objection would be to convert a discretionary power into a mandatory duty and is therefore ultra vires 1 the section.
We do not think that the contention is right.
What the material provision of s 5A(2) says is that "the Collector shall give the objector .
an opportunity of being heard either in person or by pleader and shall after hearing all such objections and after making such further enquiry if any as he thinks necessary".
This does not mean that a rule cannot be framed by the rule making authority for the guidance of the Deputy Commissioner (the Collector) which would enable the Department concerned to place its view point before him when considering the objection under section 5A.
The proceedings of the Collector are quasi judicial and it is only proper that he should be apprise of the attitude of the department requiring the land in the light of the objections filed.
If the department requiring the land thinks, in the light of the objection, that the land sought to be acquired is not necessary for the purpose for which it was required to be acquired or that more suitable land is available in the vicinity, it is only fair that 373 the Deputy Commissioner (Collector) is informed about it.
The answer of the department to the objection filed by the objector, even if adverse to the objector, would, at any rate, enable the Collector to bring a more informed and rational approach to the controversy before him.
The Collector has to send his recommendation to government on the basis of his finding together with the record of the proceedings for the ultimate decision by the Government.
IT would be helpful to the Government in making the decision to have before it the answer to the objection by the department in order to appreciate the rival view points.
We do not think that rule 3(b) was ultra vires.
the section.
We also think that the government when it framed the rule had in mind that the Deputy Commissioner (Collector) should follow it while functioning under section 5A(2) and so the requirement of the rule was mandatory.
In determining the question whether a provision is mandatory or directory, one must look into the subject matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured.
No doubt, all laws are mandatory in the sense they impose the duty to obey on those who come within its purview.
But it does not follow that every departure from it shall taint the proceedings with a fatal blemish.
The determination of the question whether a provision is mandatory or directory would, in the ultimate analysis, depend upon the intent of the law maker.
And that has to he gathered not only from the phraseology of the provision but also by considering its nature, its design and the consequences which would follow from construing it in one way or the other.
We see no reason why the rule should receive a permissible interpretation instead of a pre emptory construction.
As we said, the rule was enacted for the purpose of enabling the Deputy Commissioner (Land Acquisition Collector) to have all the relevant materials before him for coming to a conclusion to be incorporated in the report to be sent to the Government in order to enable the Government to make the proper decision.
In Lonappan vs
Sub Collector of Palghat(1) the Kerala High Court took the view that the requirement of the rule regarding the giving of notice to the department concerned was mandatory.
The view of the Madras High Court in K. V. Krishna Iyer vs The State of Madras(2)is also much the same.
We think that the High Court was right in its conclusion that the requirement of the rule was mandatory.
We quash the proceedings of the Collector (Special Land Acquisition officer, 2nd appellant) under section SA(2) as also the decision of the Government on the basis of the report of the Collector under the sub section.
The result is that the notification under section 6 has to be quashed and we do so.
But We sec no reason to quash the notification under section 4.
We direct the Collector (2nd appellant) to proceed with the inquiry on the basis of the objection already filed under section 5A after (1) A.I.R. 1959 Kerala 343.
(2) (1967) 2 Madras law Journal 422.
374 giving notice to the department concerned viz., the Education Department and after allowing it an opportunity to file an answer to the objection.
We dismiss the appeal subject to the modification indicated.
No costs.
The facts and circumstances in Civil Appeal No. 1700 of 1973 are similar to those in Civil Appeal No. 1827 of 1973, the only difference being that the rule which falls to be considered is rule 5(2) framed by the Government of Mysore under section 55 of the Act.
That rule is similar to rule 3(b) of the Madras rule.
For the reasons given in the judgment in Civil Appeal No. 1827 of 1973, dismiss Civil Appeal No. 1700 of 1973 also with the modification indicated therein and without any order as to costs.
Civil Appeal No. 1021 of 1973 The facts in this appeal are similar to those in the two Civil Appeals referred to above and the decision there will govern the decision here.
But counsel for the respondent in this appeal said that the notification under section 4 should be quashed in respect of properties involved in this appeal for the reasons that public notice had not been given as required in section 4 of the Act, that the report under section 5A was not sent to the Government within the prescribed period, that the High Court failed to pass upon these questions and that the case must therefore be remitted to the High Court.
The notification under section 4 was published on 13 4.1967.
Objections were filed by the respondent under section 5A of the Act.
The Deputy I I Commissioner submitted his report to the Government.
The Government over ruled the objections.
The notification under section 6 was published in the gazette on 19 10 1968.
The Writ Petition challenging the validity of the notification was filed some time in July or August, 1969.
We do not think that the respondent was entitled to challenge the validity of the notification under section 4 of the Act as the Writ Petition challenging the notification was filed after an unreasonable lapse of time.
If public notice as required by section 4 of the Act was not given and that would per se vitiate the notification under section 4, the ' appellant should have challenged its validity within a reasonable time of the publication of the notification.
The respondent knew of the notification and filed objection under section 5 of the Act.
In these circumstances we see no reason to accept the submission of counsel.
We also see no substance in the argument of the counsel that the report drawn up under section SA(2) was not sent to the Government within the time prescribed and therefore the proceedings were invalid.
We have directed a fresh inquiry by the Deputy Commissioner (Collector) under section SA and therefore, the Deputy Commissioner will in any event have to send a fresh report to the Government.
In this view we do not think that there is any ground for remitting the case to the High Court, simply because the High Court failed to , consider these points.
The appeal is dismissed with the modification; indicated in the two appeals referred to above.
No costs.
P.H.P. Appeals dismissed.

Output:
The respondents are the owners of the land in question.
the land was sought to be acquired for an Engineering College at the instance of the Education Department of the State of Mysore.
Section 4 notification was issued in the year 1960.
After an enquiry into the objections filed under section 5A the land Acquisition officer sent his report to the Government.
Government over ruled the objection and issued a notification under section 6.
The Education Department at whose instance the land was sought to be acquired was not given notice as required by rule (b) of Madras Land Acquisition rules.
The respondents field a Writ Petition in the High Court challenging the validity or both the notifications on the ground that the Education Department was not consulted.
The High Court upheld the contention of ' the respondents and quashed the notifications issued under sections 4 and 6 of the Act on the ground that if the Department concerned filed any reply pursuant to the notice issued the objector would know what the Department has stated by way of reply and at the stage of hearing of objection.
tile objector might adduce evidence or address arguments to meet what is stated in such reply.
The objector.
could further urge before the Government that the reasons given by the department in reply to the objections should not be accepted: On appeal by Special Leave it was contended by the appellant.
Rule 3 (b) is inconsistent With section 5A (2) for the reasons that sub section (2) of section 5A provides for further enquiry in the discretion of the Collector and rule 3(b) if treated as mandatory would be to convert the discretionary power into a mandatory duty and is therefore, ultra vires the section.
The provisions of rule 3(b) were not mandatory and that therefore, failure to issue the notice to the department concerned was not fatal to the validity of the notification.
^ HELD: 1.
Section 5A requires the Collector to make a report after hearing the objections.
It does not mean that a rule cannot be framed which would enable the department concerned to place its view point before the Collector when considering the objection under section 5A.
The proceeding of the Collector are quasi judicial and it is only proper that he should be apprised of the attitude of the department requiring the land in the light of the objections filed.
It would be helpful to the Government in making the decision to have before it the answer to the objection by the department in order to appreciate the riv view point.
Rule 3(b) is not Ultra vires Section SA.
[372F H 373 A C] 2.
In determining the question whether a provision is mandatory or directory one must look into the subject matter.
and consider the importance of the provision disregarded and the relation of.
that provision to the general object intended to be secured.
One has to consider the nature the design and the consequence which will follow from construing a provision in one way or the other.
Rule 3(b) was enacted for the purpose of enabling the Collector to have all the 370 relevant materials before him for coming to a conclusion to be incorporated A in the report to be sent to the Government in order to enable the Government to make proper decision.
The High Court was right in holding that the provision WAS mandatory.
[373C F] The notification under Section 6 was quashed but the notification under section 4 was upheld.
[373 G] CIVIL APPEAL No. 1021 or 1973 The respondents raised further contention in the above appeal to the effect that notification under section 4 should be quashed since the public notice as required by section 4 is not given and the report under section 5A was not sent to the Government within the prescribed period.
HELD: The notification under section 4 was published on 13 4 1967.
Objections were filed by the respondent under section 5A of the Act.
The notification under section 6 was published in October 1968.
The Writ Petition was filed in July 1969.
The respondent was not entitled to challenge the validity of the notification under section 4 of the Act as Writ Petition challenging the notification was filed after an unreasonable lapse of time.
The respondent should have challenged the validity of the notification under section 4 within a reasonable time of ' the publication of the notification.
The respondent knew of the notification and file(l objections under section 5A of the Act.
There is no substance in the argument that the report under section 5A was not sent to the Government within the prescribed period.
In any event since a fresh enquiry is directed under section 5A the Collector will in any event have to send a fresh report to the Government.
[374D G]


Input:
TION: Criminal Appeal No. 74 of 1976.
Appeal by Special Leave from the Judgment and 'Order dated 28 7 75 of the Patna High Court in Criminal Revi sion No. 1046 of 1972.
A.K. Sen and A.K. Nag for the Appellant.
D. Gobrudhan, for the respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave exhibits the careless and cavalior manner in which the Sub Divisional Magistrate appears to have dealt with the complaint filed before him as far back as 21st February, 1966.
The com plaint itself contains allegations of a very petty nature, of which hardly any cognizance could have been taken and which would be a trivial act under Sec.
95 of Indian Penal Code for which no criminal proceedings could be taken.
There were proceedings under Section 107 between the parties and both 126 parties applied for copies of .these proceedings on the 20th December, 1965.
It is alleged in the complaint that the appellant got the copy which was meant for the complainant, by signing his name.
The complainant also got his copy a few days after eventually.
Such a small matter could have been resolved by the Magistrate himself if he had persued the complaint carefully and was certainly not a , matter for which a detailed inquiry under section 202, Code of Criminal Procedure, 1908 was called for.
It appears, howev er, that the Magistrate tossed the complaint from one Magis trate to another for inquiry and report, without conclusive results, starting from 21st February 1966 to 23rd November 1968, that is, for a period of more than two years.
Ulti mately, on the 23rd November, 1968 the complaint was dis missed under section 203 of the Criminal Procedure Code on the ground that the complainant was absent and did not show any interest in the inquiry ordered by the Court.
On the 7th of December, 1968 the respondent appeared before the Magistrate and filed an application for recalling his order.
The Magistrate passed no orders on this applica tion but he sent the case ' for inquiry to Mr. K.P. Sinha, another Magistrate.
Thereafter, the matter was sent to Mr. S.N. Dube on 30th of October, 1969.
Mr, Dube reported that the inquiry had been completed and hence he returned the papers.
of inquiry to the Magistrate.
On 9th of Decem ber, 1970, the Magistrate recalled the inquiry from Mr. K.P. Sinha and transferred to Mr. A.R. Ansari and on the basis of his report, the learned Magistrate passed the order taking cognizance of the case and summoned the accused by his order dated 3 5 1972, and issued processes against the appellants.
It would thus appear that a very petty matter was allowed to have a long and chequered career because the Magistrate refused to apply his mind either to the ' allegations made in the complaint or to control the proceedings before him.
In support of the appeal Mr, Nag has submitted a short point.
He has contended that the Magistrate had no jurisdic tion to recall the order dated 23 11 1968, by which he had dismissed the complaint under Section 203 of the Code of Criminal Procedure.
In fact, there was no express order recalling the order dismissing the complaint, but by a process of deeming fiction the Magistrate thought that the order dismissing the complaint stood recalled.
We might mention that the order dated 23rd November, 1968 was a judicial order by which the Magistrate had given full reasons for dismissing the complaint.
Even if the Magistrate had any jurisdiction to recall this order, it could have been done by another judicial order after giving reasons that he was satisfied that a case was made out for recalling the order.
We, however, need not dilate on this point because there is absolutely no provision in the Code of Criminal Procedure of 1908 (which applies to this case) empowering a Magistrate to.
review or recall an order passed by him.
Code of Criminal Procedure does contain a provision for inherent powers, namely, Section 561 A which, however, confers these powers on the High Court and the High Court alone.
Unlike Section 151 127 of Civil Procedure Code, the subordinate criminal courts have no inherent powers.
In these circumstances, there fore, the learned Magistrate had absolutely no jurisdic tion to recall the order dismissing the complaint.
The remedy of the respondent was to move the Sessions Judge or the High Court in revision.
In fact after having passed the order dated 23 11 1968, the Sub Divisional Magistrate became functus officio and had no power to review or recall that order on any ground whatsoever.
In these circumstances, therefore, the order even if there be one, recalling order dismissing the complaint, was entirely without jurisdiction.
This being the position, all subsequent proceedings follow ing upon recalling the said order,would fall to the ground including order dated 3 5 1972 summoning the accused which must also be treated to be a nullity and destitute of any legal effect.
The High Court has not at all considered this important aspect of the matter which alone was sufficient to put an end to these proceedings.
It was suggested by Mr. D. Goburdhan that the application given by him for recalling the order of dismissal of the complaint would amount to a fresh complaint.
We are, however, unable to agree with this contention because there was no fresh complaint and it is now well settled that a second complaint can lie only on fresh facts or even on the previous facts only if a special case is made out.
This has been held by this Court in Pramatha Nath Taluqdar vs Saroj Ranjan Sarkar(1).
For these reasons therefore, the appeal is allowed.
The Order of the High Court maintaining the order of the Magistrate dated 3 5 1972 is set aside and the order of the Magistrate dated 3 5 1972 summoning the appellant is hereby quashed.
M.R. Appeal allowed.
(1) [1962] 2 Supp.
S.C.R. 297.

Output:
The respondent 's complaint against the appellant regarding a trivial matter was tossed for three years between various magistrates for inquiry and report without conclusive re sults, and was ultimately dismissed under section 203 Cr.
P.C. Thereafter on an application by the respondent for recalling his dismissal order, the Magistrate again sent/the case for inquiry ultimately issued process against the accused.
The appellant contended before this Court that the Magis trate had no jurisdiction to recall his order of dismissal.
According to the respondent, his application for recalling the dismissal order, would amount to a fresh complaint.
Allowing the appeal, this Court, HELD: (1 ) There is absolutely no provision in the Code of Criminal Procedure of 1908 (which applies to this case) empowering a Magistrate to review or recall an order passed by him.
Unlike section 151 of the Civil Procedure Code, the subordinate criminal courts have no inherent powers.
After having passed the order, the Sub Divisional Magistrate became functus officio and had no power to review or recall that order on any ground whatsoever.
[126 G H; 127 A] (2) There was no fresh complaint and it is now well settled that a second complaint can be only on fresh facts or even on the previous facts only if a special case is made out.
[127 C D] Pramatha Nath Taluqdar vs Saroj Ranjan Sarkar, ; , followed.


Input:
Appeal No. 235 of 1958.
12 90 Appeal from the judgment and decree dated October 18,1956, of the former PEPSU High Court in Regular First Appeal No. 11 of 1954, arising out of the judgment and decree dated November 21, 1953, of the Additional District Judge, Patiala.
Gopal Singh and K. B. Krishnaswamy, for the appellant.
N. section Bindra and D. Gupta, for the respondent.
July 28.
The Judgment of the Court was delivered by DAS GUPTA J.
The appellant Dalip Singh entered the service of the Patiala State in 1916 and rose to the rank of Inspector General of Police of the State in June 1946.
After the formation of the State of Pepsu he was absorbed in the Police Service of the newly formed State and was appointed and confirmed as Inspector General of Police thereof.
While holding that post he proceeded on leave from October 18, 1949, till August 17, 1950.
On August 18, 1950, an order was made by the Rajpramukh of the State in these words: " His Highness the Rajpramukh is pleased to retire from service Sardar Dalip Singh, Inspector General of Police, Pepsu (on leave) for administrative reasons with effect from the 18th August, 1950.
" A copy of this order was forwarded to the appellant.
Thereupon on August 19, 1950, the appellant wrote to the Chief Secretary of the State stating that by his retirement he would be put to heavy loss, i.e., about Rs. 50,000 which he would have earned as his pay and allowances etc., during this period and that his pension was also being affected and that this decision of the Government tantamounts to his removal from service.
He requested that the Government should let him know the grounds which had impelled the Government to take this decision about his removal.
Ultimately on March 30, 1951, the Government mentioned the charges against him on the basis of which the Government had decided to retire him on administrative grounds.
After service of notice under 91 s.80 of the Code of Civil Procedure the appellant brought a suit in the Court of the District Judge, Patiala, against the State of Pepsu asking for a declaration that the orders of August 16, 1950, and August 18, 1950, whereby " the plaintiff has been removed from the post of Inspector General of Police, Pepsu, are unconstitutional, illegal, void, ultra vires and inoperative and that the plaintiff still continues to be in the service of the defendant as Inspector General of Police and is entitled to the arrears of his pay and allowances from August 18, 1950, and is also entitled to continue to draw his pay and allowances till his retirement at the age of superannuation ; and a decree for the recovery of Rs. 26,699 130 and full costs of this suit and future interest.
" The main plea on which the suit was based was that the order of August 18, 1950, amounted to his removal from service within the meaning of article 311(2) of the Constitution and the provisions of that article not having been complied with the termination of his service was void and inoperative in law.
The respondent State contended that the plaintiff had been retired from service and had not been removed from service and so article 311 of the Constitution had no application.
On this question the trial Court came to the conclusion that the order compulsorily retiring the plaintiff amounted to his removal within the meaning of article 311 of the Constitution and as the requirement of that Article had not been complied with it held that the termination of service effected by that order was void in law.
The Court accordingly decreed the suit in favour of the plaintiff declaring that the orders of the Government dated August 18, 1950, whereby the plaintiff had been remo ved from the post of Inspector General of Police, Pepsu, are unconstitutional, illegal, void and ultra vires and inoperative and that the plaintiff still continued to be in the service of the defendant as Inspector General of Police and he his entitled to the arrears of his pay and allowances from August 18, 1950 and is also entitled to continue to draw his pay and allowance 92 till his retirement at the age of superannuation and a decree for the recovery of Rs. 26,699 13 0.
On appeal by the State the Pepsu High Court disagreeing with the Trial Court held that the order of compulsory retirement did not amount to removal from service within the meaning of article 311 of the Constitution and accordingly allowed the appeal and dismissed the plaintiffs suit.
The main contention of the plaintiff before us was that the order of retirement did amount to his removal from service within the meaning of article 311 of the Constitution.
The learned counsel also wanted to argue that Rule 278 of the Patiala State Regulations under which the Government apparently made the order of compulsory retirement was no longer operative.
It appears that the Patiala State Regulations which continued to govern the members of the services of that State after they became integrated into the Pepsu State Services were revised from time to time.
It was suggested by the learned counsel that the revised rules do not contain any rules similar to Rule 278.
Rule 278 of the Patiala State Regulations was in the following words: " 278.
For all classes of pensions the pet son who desires to obtain the pension is required to submit his application before any pension is granted to him.
The State reserves to itself the right to retire any of its employees on pension on political or on other reasons.
" The learned counsel though wanting to persuade us that the Rule about the State reserving to itself the right to retire any of its employees on pension on political or on other reasons was not present in the new rules was unable to show us however that before August 18, 1950, there had been any revision of Rule 278.
It appears that revised rules for Travelling Allowance were published in 1946 as Vol.
II of the new ruler,; and Rules relating to pay and allowances were published as Vol.
I in 1947.
Thereafter in 1952 we find that the first volume of the Pepsu Service Regulations as regards pay and leave rules was published.
In the same year the third volume of the Pepsu State 93 Regulations containing rules relating to pensions was published.
In the preface to this volume we find this statement : " The Revised Edition of the Patiala State Regulations relating to pay, allowances, leave, pension and travelling allowance was published in the year 1931.
Subsequently the travelling allowance rules were revised and issued as Patiala Service Regulations, Vol.
II, in the year 1946.
Similarly the pay, allowances and leave rules were taken out from the Revised Edition (1931) and printed as Patiala Services Regulations, Volume 1, in the year 1947.
The other rules relating to pensions continued to remain in the Revis ed Edition (1931) and kept upto date by the issue of correction slips.
On the formation of the Patiala & East Punjab States Union on 20 8 48, these rules were made applicable to the entire territories of the Union by Ordinance No. 1 of 2005.
The number of copies of this publication available for official use had run out of stock and great difficulty has been experienced in Government offices for want of it for reference.
It was.
therefore found necessary to revise and reprint this publication to make it available to all offices.
" This makes it clear that upto the publication in 1952 of Volume III of the Pepsu Service Regulations the pension rules appearing in the 1931 edition of the Patiala State Regulations continued to be applicable to Pepsu.
On August 18, 1950, therefore it is reasonable to hold that Rule 278 in its entirety remained in force and was applicable to Pepsu.
It is interesting to mention that in this 1952 edition also this reservation by the Government of the " right to retire any of its employees on pension on political or on other reasons " has been maintained (Vide Chapter V, Rule 10).
The contention of the learned counsel that Rule 278 was not applicable to the case of the appellant on August 18, 1950, is therefore totally without foundation.
This brings us to the main contention in the case.
viz., that the compulsory retirement of the appellant under Rule 278 of the Patiala State Regulations was a removal from service within the meaning of article 311 of the Constitution.
The question whether the 94 termination of service by compulsory retirement in accordance with Service Rules amount to removal from service was considered by 'his Court in Shyamlal vs The State of U. P. and the Union of India (1) and again recently in State of Bombay V. Subhagchand D08hi (2).
The Court decided in Shyam Lal 's Case (1) that two tests had to be applied for ascertaining whether a termination of service by compulsory retirement amounted to removal or dismissal so as to attract the provisions of article 311 of the Constitution.
The first is whether the action is by way of punishment and to find that out the Court said that it was necessary that a charge or imputation against the officer is made the condition of the exercise of the power; the second is whether by compulsory retirement the officer is losing the benefit he has already.
earned as he does by dismissal or removal.
In that case in fact a charge sheet was drawn up against the officer and an enquiry held but ultimately the order of compulsory retirement was not based on the result of the enquiry.
The Court pointed out that the enquiry was merely to help the Government to make up its mind as to whether it was in the public interest to dispense with his services so that the imputation made in the charge sheet was not being made the condition of the exercise of the power.
These tests were applied in Doshi 's Case (2) and it was held that the provisions of compulsory retirement under Rule 165.A of the Saurashtra Civil Service Rules under which the order of retirement was made there was not violative of article 311(2).
It was pointed out that " while misconduct and inefficiency are factors that enter into the account where the order is one of dismissal or removal or of retirement, there is this difference that while in the case of retirement they merely furnish the background and the enquiry, if held and there is no duty to hold an enquiry is only for the satisfaction of the authorities who have to take action, in the case of dismissal or removal, they form the very basis on which the order is made and the enquiry thereon must be formal, and must satisfy (1) ; (2) ; 95 the rules of natural justice and the requirements of article 311(2) ".
In the case before us the order of the Rajpramukh does not purport to be passed on any charge of misconduct or inefficiency.
All it states is that the compulsory retirement is for " administrative reasons.
" It was only after the appellant 's own insistence to be supplied with the grounds which led to the decision that certain charges were communicated to him.
There is therefore no basis for saying that the order of retirement contained any imputation or charge against the officer.
The fact that considerations of misconduct or inefficiency weighed with the Government in coming to its conclusion whether any action should be taken under Rule 278 does not amount to any imputation or charge against the officer.
Applying the other test, viz., whether the officer has lost the benefit he has earned, we find that the officer has been allowed full pension.
There is no question of his having lost a benefit earned.
It may be pointed out that Rule 278 itself provides for retirement on pension.
If the provision had been for retirement without pension in accordance with the rules there might have been some reason to hold that the retirement was by way of punishment.
As however the retirement can only be on pension in accordance with the rules in the present case full pension has been granted to the officer the order of retirement is clearly not by way of punishment.
In Doshi 's Case (1) there is at p. 579 an observation which might at first sight seem to suggest that in the opinion of this Court compulsory retirement not amounting to dismissal or removal could only take place under a rule fixing an age for compulsory retirement.
We do not think that was what the Court intended to say in Doshi 's Case(2).
In Doshi 's Case(3) there was in fact a rule fixing an age for compulsory retirement, at the age of 55, and in addition another rule for compulsory retirement after an officer had completed the age of 50 or 25 years of service.
It was in that context that the Court made the above (1) ; 96 observation.
It had not in that case to deal with a rule which did provide for compulsory retirement, at any age whatsoever irrespective of the length of service put in.
It will not be proper to read the observations in D08hi 's Case referred to above as laying down the law that retirement under the rule we are considering must necessarily be regarded as dismissal or removal within the meaning of article 311.
We are therefore of opinion that the High Court was right in holding that the order of compulsory retirement made against the appellant was not removal from service so as to attract the provisions of article 311 of the Constitution and that the suit was rightly dismissed.
The appeal is accordingly dismissed with costs.
Appeal dismissed.

Output:
The appellant was compulsorily retired from service by the Rajpramukh of Pepsu by an order dated August 18, 1950, which was as follows: His Highness the Rajpramukh is pleased to retire from 89 service Sardar Dalip Singh, Inspector General of Police, Pepsu (on leave) for administrative reasons with effect from the 18th August, 1950." No charges Were framed against him and it was on his insist ence that certain charges were communicated to him.
Rule 278 of the Patiala State Regulations, 1931 which was then in force, provided as follows : " 278.
For all classes of pensions of person who desires to obtain the pension is required to submit his application before any pension is granted to him.
The State reserves to itself the right to retire any of its employees on pension on political or on other reasons.
" The question for determination in the appeal was whether the compulsory retirement of the appellant amounted to removal or dismissal from service within the meaning of article 311(2) of the Constitution.
The trial Court held in favour of the appellant and the High Court against him, Held, that the two tests laid down by this Court for deter mining whether an order of compulsory retirement amounted to removal or dismissal from service were (1) whether it was by way of punishment, a charge or imputation against the officer, being made the basis of the exercise of the power, and (2) whether the officer was deprived of any benefit already earned as in a case of dismissal or removal.
Shyamlal vs State of U. P., ; and State of Bombay vs Subhagchand Doshi, ; , referred to.
So judged, the order passed against the appellant could not amount to dismissal or removal from service within the meaning of article 311(2) of the Constitution.
The order was not one purported to have been made on any charge of misconduct or inefficient and the fact that any such considerations might have weighed with the Government in passing the order under Rule 278 did not amount to any imputation or charge against the officer, and there could be no question of losing any benefit earned since the Rule itself provided for retirement on pension and the officer had in fact been allowed full pension.
It would not be correct to say that since the Rule did not fix any age for compulsory retirement, an order of compulsory retirement passed under it must necessarily be regarded as dismissal or removal within the meaning of article 311(2) of the Constitution.
State of Bombay vs Subhagchand Doshi, ; , ex plained.