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NO. 893 and 967 of 1979 and W. P. No, 295 of 1980 Under Article 32 of the Constitution of India Dr. Y. section Chitale, and Vineet Kumar for the petitioners m W. P. NOS.
823 & 967 of 1979.
T. M. Sampat and P. N. Ramnalingam for the Petitioners in W. P. No. 295/80.
Anil Devan, K. section Ramamurthy, V. M. Tarkunde, M. K. D. Namboodry and section BalaKrishnan for the respondents in W. P. Nos. 893 & 967 of 1979 and W. P. No 295 of 1980.
The Judgment of the Court was delivered by TULZAPURKAR, J.
By these three writ petitions filed under article 32 of the Constitution the petitioners, who are tenants in a building belonging to respondent No. 2 Society, have challenged the validity of the exemption granted to all buildings owned by all Co operative Societies in the State of Tamil Nadu from all the provisions of the T. N. Act 18 of 1960 under sec.
29 thereof.
The facts giving rise to the aforesid challenge lie in a narrow compass.
The petitioners are tenants in different portions on the ground floor of the building bearing Door No. 188, Mount Road, Madras belonging to second respondent which is an Apex Society registered under the Tamil Nadu Co operative Societies Act, 1961.
It appears that the property was purchased in 1961 by the second respondent from its previous owners M/s. Mohammed Ibrahim and Company, and soon thereafter the second respondent applied to the State Government under sec.
29 of the Act and sought exemption for it from all the provisions of the Act But on hearing the objections raised by the petitioners and other tenants the application was rejected.
Respondent No 2 thereupon made two attempts to evict the petitioners from their respective premises.
The first was on the ground that the premises are required by it for its own occupation but at the end of a long drawn out litigation respondent No. 2 failed to obtain possession; the second was on the ground that it required the premises for demolition and new construction and it was during the tendency of this litigation that the State Government issued its Notification No. II (2) H.O. 6060/76 dated 21.11 1976 under sec.
29 419 of the Act whereby the State Government exempted the buildings A belonging to all Co operative Societies in the State of Tamil Nadu from all the provisions of the Act.
On the issuance of this Notification respondent No. 2 Withdrew its eviction petitions preferred on the ground of demolition and new construction and served notices upon the petitioners under sec.
106 of the Transfer of Property Act terminating their tenancies and filed civil suits against them in the City Civil Court, Madras for recovery of vacant possession of the premises in their respective occupation.
The petitioners have filed their written statements and suits are awaiting trial.
But since the protection available to them has been withdrawn the petitioners arc facing the imminent prospect of suffering eviction decrees against them and therefore, have approached this Court by means of these writ petitions challenging the constitutional validity of the Notification in question of the ground that the same is violative of article 14 of the Constitution and have obtained stay of further proceedings in the suits.
The impugned Notification dated 21st November, 1976 runs thus: "No. II (2) H.O. 6060176 In exercise of the powers conferred by Sec. 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 (Tamil Nadu Act 18 of 1960), the Government of Tamil Nadu hereby exempts the.
buildings owned by all Government Undertakings including Government Companies registered under the Indian Central Act I of 1956) and by all the Co operative Societies from all the provisions of the said Act.
" As was done in the earlier case dealing with the total exemption granted in favour of all buildings belonging to public religious trusts and public charities, here also Counsel for the petitioners fairly stated that treating the buildings owned by all the Co operative Societies in the State of Tamil Nadu as falling into one group while exercising the power under sec.
29 of the Act will have to be regarded as a rational classification based on an intelligible differentia inasmuch as Co operative Societies while carrying on their activities in various fields do serve a great public purpose of attaining the social and economic welfare of a large section of the people belonging to the middle class and the rural class by encouraging thrift, selfhelp and mutual aid amongst them and by eliminating the middle 420 man and as such do form a distinct group different from other bodies undertaking similar activities on commercial lines and as such buildings belonging to Co operative Societies may need special or preferential treatment in some matters like registration of documents, payment of stamp duty, recovery of their dues etc.
at the hands of the State Government but according to Counsel the differentia on which this classification is based has no nexus with the object with which the powers to grant exemption has been conferred upon the State Government under sec.
29 of the Act and since the impugned Notification does not satisfy the test of nexus the exemption granted to all such buildings cannot be sustained and will have to be regarded as discriminatory and violative of article 14.
By way of elaborating the aforesaid contention Counsel for the petitioners urged that the Act was put on the statute book for the purpose of curbing the two evils of rack renting and unreasonable eviction and that the power to grant exemption could as per the guidance afforded by the scheme all the provisions of the Act be exercised by the State Government ill cases where the mischief sought to be remedied by the Act is neither prevalent nor apprehended are in cases where an inflexible application of the law is likely to result in undue hardship or in cases where the beneficial provision of the Act is likely to be or is being abused by persons for whom it is intended and according to Counsel the exemption in favour of the buildings belonging to all Co operative Societies in the State of Tamil Nadu does not conform to such guidance.
Counsel pointed out that Rule 11 of the Rules made under the T.N. Co operative Societies Act 1961 specifies as many as 13 different classes of Co operative Societies, such as farming society, credit society, housing society, marketing society etc.
and the impugned Notification indiscriminately and unconditionally exempts all buildings belonging to all types of Co operative Societies with no regard to their nature or functions Further, according to sec.
4 of the T.N. Co operative Societies Act the very object of every Co operative Society is the promotion of the economic interest of its Members and sec.
62 of that Act provides not only for payment of dividends o n shares to members but also for payment of bonus to members and paid employees of the Society.
Hence it is unrealistic to assume that Co operative Societies are not or will not indulge in rack renting or unreason eviction or will be ideal landlords whose tenants will not be in need of any statutory protection.
Tn other words Counsel urged that there was and is no warrant of any 421 presumption that Co operative Societies qua landlords will not indulge in rack renting or will not unreasonably evict tenants; in fact they would not be different from other private landlords so far as the two evils sought to be curbed by the Act are concerned and therefore Counsel urged that the exemption granted could not be said to be in conformity with the guidance afforded by the scheme and the provisions of the Act.
In support of the above contention Counsel relied upon a decision of this Court in Baburao Shantaram More vs The Bombay Housing Board and Anr.(1) where the validity of sec.
3 A of the Bombay Housing Board Act, 1951 was challenged as infringing article 14.
It was urged in that case that sec.
3 A exempted lands and buildings belonging to the Bombay Housing Board from the operation of the Bombay Rent Act, 1947 while lands and buildings belonging to numerous Co operative Housing Societies, which were similarly situated and whose object was also to solve housing problems, were not given any exemption from the operation of the Rent Act and the result was that while tenants of the Co operative Housing Societies were fully protected against unreasonable eviction and enhancement of rent, the tenants of the Housing Board were denied such protection and therefore sec.
3 A was violative of article 14.
The contention was negatived on the ground that the Housing Board and the Cooperative Housing Societies incorporated under the Cooperative Societies Act were not similarly situated and in that behalf this Court observed thus: "Further, though these Co operative Housing Societies are no doubt incorporated bodies, they nevertheless may earn profits which may be distributed amongst their members.
The Board, on the other hand, is incorporated body brought into existence for the purpose of framing housing schemes to solve the problem of acute shortage of housing in Bombay.
There are no share holders interested in the distribution of any profits.
It is under the control of the Government and acts under the orders of the Government.
In effect, it is a Government sponsored body not having any profits making motive.
No material has been placed before us which may remotely be regarded as suggesting, much less proving, that Co operative Housing (1) ; 422 Societies or their members stand similarly situated vis a vis the Board and its tenants.
" Relying upon the above observations Counsel for the petitioners submitted that this Court had recognised the position that various activities are undertaken by Cooperative Societies with the motive of earning profits and as such there was and is no warrant for treating them differently from other private landlords in the context of two evils sought to be remedied by the Act and in this sense the exemption granted does not satisfy the test or nexus and therefore the same infringes article 14.
The above contention so presented, though seemingly plausible, will, on deeper scrutiny, be found to be without substance and we shall presently indicate our reasons for saying so.
It is true that under sec.
4 of the Tamil Nadu Co operative Societies Act the very object of every Co operative Society registered thereunder is the promotion of economic interests of its members and section 62 of the Act provides for payment of dividends on shares to its members as also for payment of bonus to its members and paid employees.
But these aspects of a Co operative Society do not mean that it could be linkened to any other body undertaking similar activities on commercial lines and to do so would be to miss the very basis on which the cooperative movement was launched and propagated and has been making progress in the country during the last several decades.
Indisputably, Co operative Societies which carry on their activities in various fields do 50 for the purpose of attaining the social and economic welfare of a large section of the people belonging to the middle class and the rural class by encouraging thrift, self help and mutual aid amongst them, especially by eliminating the middle man.
But the object of promoting the economic interests of the members has to be achieved by following cooperative principles where the profit motive will be restricted to a reasonable level unlike other commercial bodies where sky` is the limit so far as their desire to earn profits is concerned.
Sections 4 and 62 of the T.N. Co operative Societies Act and Rule 46 of the Rules made under that Act bring out this aspect of the matter very eloquently.
Section 4 itself states that a society, which has as its object the promotion of economic interest of its members in accordance With cooperatives principle, may, subject to the provisions of the Act be registered thereunder In other words the promotion of economic interests of the members has to be achieved in accordance with co operative principles and the realisation thereof has been made subject to the provisions of the 423 Act.
Section 62 which deals with disposal of net profits puts A restrictions on the disbursement of such profits and it runs as follows: "62.
Disposal of net profits ( 1 ) (a) A registered society shall out of its net profits as declared by the Registrar for the purposes of this Act in respect of any co operative year contribute such amount not exceeding, (i) five percent of the net profits to the co operative development fund; and (ii) two per cent of the net profits to the co operative education fund, as may be specified in the Rules.
(b) Such contribution shall be made within such time and in such manner as may be prescribed.
2) The balance of the net profits so declared shall be appropriated firstly, for being credited to a reserve fund, the amount so credited being not less than twenty per cent, but not exceeding thirty per cent, af the net profits; secondly, towards contribution to such other funds and at such rates as may be specified in the Rules: thirdly, towards payment of dividends on shares to members at such rate as may be specified in the Rules; fourthly, towards payment of bonus to members and paid employees of the registered society at such rate and subject to such conditions as may be specified in the Rules; fifthly, towards contribution to such other funds and such rates as may be specified in the by laws; sixthly, towards contribution to the common good fund at such rate not exceeding ten per cent of the net profits as may be specified in the Rules; and 424 seventhly, the remainder, if any, of the net profits being credited to the reserve fund.
" Rule 46 prescribes the limits on payment of dividends on shares to its members as also on payment of bonus to its members and paid employees.
Sub Rule (3) of Rule 46 says that the payment of dividends on shares to members by a Society shall not exceed 6 percent per annum on the paid up value of each share; provided that the Government may by special or general order permit any Society or class of Societies to pay dividend at the rate exceeding 6 per cent.
Similarly under Sub Rules (4) and (5) restrictions have been placed on payment of bonus to members and to paid employees.
In view of these provisions it will appear clear that in the matter of distribution of profits by way of payment of dividend to members and payment of` bonus to members as well as paid employees restrictions have been placed by law and the same is maintained at a reasonable level and considerable portion of the net profits is apportioned and required to be carried to various kinds of funds, like cooperative development fund, co operative education fund, reserve fund etc.
In fact it is such statutory appropriations and restrictions on payment of dividends and bonus which differentiates Co operative Societies from other bodies undertaking similar activities on commercial lines and therefore, the buildings belonging to such Co operative Societies are substantially different from the buildings owned by private landlords.
Further, it has to be appreciated that these statutory provisions are applicable to all types of Co operative Societies specified in Rule 14 whatever be their nature or functions.
The profit element being maintained at a reasonable level by provisions of law in all types of Co operative Societies there is every justification for the assumption that no cooperative society will indulge in rack renting or unreasonable eviction.
In this view of the matter if the State Government came to the conclusion that in the case of Co operative Societies there being no apprehension that they would indulge in either of these two evils exemption from the provisions of the T.N. Act No. 18 of 1960 should be granted in favour of buildings belonging to such Co operative Societies it will have to be regarded as a legitimate exercise of the power conferred on it under section 29 of the Act the same being in conformity with the guidance afforded by the preamble and provisions of the Act in that behalf.
Besides, on the factual sides of the issue it has been specifically averred in the counter affidavit filed on behalf of the State Govern 425 ment that it duly took note of the fact that all types of Co operative Societies functioning in Madras City and at several centers throughout the State as a class were engaged in various kinds of activities promoting social welfare, rural development and economic good by providing employment to lacs of people and were doing excellent work by way of implementing one of the Directive Principles of State Policy embodied in article 43 of the Constitution, that several complaints were received from these Co operative Societies that they were facing problems arising out of a literal application of the T.N. Act 18 of 1960, particularly in the matter of securing accommodation in their own buildings for carrying on their activities and that they got involved in long drawn out litigations in that behalf and requesting for an exemption from the provisions of the Act so that they could be relieved of the hardships from which they were suffering; it has been further averred that the Government also took note of the fact that it was not the business activity of any Co operative Society including even a Co operative Housing Society to purchase buildings for the purpose of letting them out and earning income therefrom and as such there was no apprehension of indulging in rack renting on their behalf and that on a consideration of all the relevant factors the Government was satisfied that the protection given to the tenants of such buildings, if withdrawn, would not result in rack renting or unreasonable eviction and that the granting of exemption to them was necessary to relieve them of great hardship lt may be stated that all these averments have gone unchallenged and in our view the facts and circumstances put forward by the State Government clearly show that the differential on the basis of which the classification was made had a clear nexus with the object with which the power to grant exemption has been conferred upon the State and therefore the impugned Notification will have to be regarded as valid In regard to respondent No. 2 being the Apex Society herein, the additional factors taken into consideration were that out of its total share capital of 13.78 crores the State Government 's contribution was to the tune of 12.81 crores, that the Government had guaranteed the loans borrowed by it for its working capital.
that as the apex body it had membership of about 1488 primary societies (Handloom Weavers Co operative Societies and that it had 34 branches and two godowns in Madras and was required to pay for its rented premises rent at the rate of Rs. 2 50 per square foot while the tenants of their own building were paying rent at the rate of 20 paisa per square feet; respondent No. 2 society was also involved in a long 426 drawn out litigation under the provisions of the T.N. Act 18 of 1960 In other words, respondent No 2 society was a glaring instance of undue hardship being suffered by a Co operative Society as a result of the literal application of the Act.
We are sure that a large number of similar instances must have prompted the State Government to issue the impugned Notification which as we have said above will have to be regarded a legitimate exercise of power conferred on the State Government under sec 29 of the Act Counsel has of course placed strong reliance upon the observations made by this Court in Baburao Shantaram 's case (supra) which have been quoted above in support of his contention but in our view neither the ratio nor the observations are of any avail to the petitioners.
It will be clear at once that the decision in question is no authority for the proposition that exemption from the provisions of any rent control enactment cannot be granted in favour of the buildings owned by Co operative Societies.
the case was con concerned with the constitutional validity of sec 3 A of the Bombay Housing Board Act, 1951 where under exemption had been granted to lands and buildings belonging to the Bombay Housing Board from the operation of the Bombay Rent Act, 1941 and its validity was upheld by this Court.
One of the contentions urged before the Court was that buildings belonging to Co operative Housing Societies in Bombay were similarly situated as the buildings belonging to the Housing Board inasmuch as the object served by Co operative Housing Societies and the Housing Board was the same namely, solving the housing problems of the city of Bombay and even so, though the tenants of Co operative Housing Societies were fully protected against unreasonable eviction and enhancement of rent, the tenants of Housing Board were denied such protection and therefore sec.
3 A was discriminatory and this contention was negatived by the Court by observing that the Co operative Housing Societies and their members were not similarly situated vis a vis the Board and its tenants and while pointing out the difference the Court stated that while Cooperative Housing Societies may earn profits distributable among its members there was no question of the Housing Board making any profits.
The Court was not concerned with the question as to whether a similar exemption if granted to buildings belonging to Co operative Societies would be valid or rot.
The difference pointed by this Court was sufficient to refute the charge of discrimination levelled against the particular piece of legislation (sec.
3 A of the Bombay Housing Boards Act 1951) but it 11 will be fallacious to rely upon this difference for the purpose of 427 striking down the exemption granted in favour of buildings of Cooperative Societies under another enactment if such exemption is otherwise justified on the facts and circumstances obtaining in regard to such buildings.
In fact as explained earlier the Co operative principles which govern the functioning of these Co operative Societies put a curb on their profit motive and as pointed there are statutory provisions which maintain their profit element at reasonable level which warrant the assumption that Co operative Societies would not indulge in rack renting or unreasonable eviction and it was in the light of this position as also after careful study of all relevant factors obtaining in their case the, State Government was satisfied that the grant of total exemption in favour of the buildings of all Co operative Societies functioning in the entire State was necessary.
The observations relied upon cannot therefore support the Petitioners ' contention.
In the result the writ petitions are dismissed.
Interim orders, if any are vacted.
There will be no order as to costs.

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In exorcise of the powers conferred by section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Tamil Nadu Act 18 of 1960), the Government of Tamil Nadu by a Notification No. II (2) H. O. 6060/76 dated 21 t November, 1976 exempted the Buildings owned, inter alia by all the co operative societies from all the provisions of the said Act.
Since the protection available to the petitioners, who wore tenants in a building belonging to respondent No. 2, an Apex Society registered under the Tamil Nadu Co operative Societies Act, 1961 and covered by the said notification.
had been withdrawn and since the petitioners were facing the imminent prospect of suffering eviction decrees against them, they filed the present writ petitions challenging the constitutional validity of the impugned notification on the ground that the same was violative of article 14 of the Constitution.
The petitioners contended that treating the buildings owned by all the co operative societies in the State of Tamil Nadu as falling into one group while exercising the power under sec.
29 of the Act will have to be regarded as a rational classification based on an intelligible differentia but the differentia on which this classification was based had no excuse with the object of curbing the two evils of rack renting and unreasonable eviction for which the power to grant exemption had been conferred upon the State Government under sec.
29 of the Act and since the impugned notification did not satisfy be test of nexus the exemption granted to all such buildings could not be sustained and Will have to be regarded as discriminatory and violative of article 14.
In other words Counsel urged that there was and is up warrant OF any presumption that co operative societies qua landlords will not indulge in rack renting or will not unreasonably evict tenants; in fact they would not be different from other private landlords so far as the two evils sought to be curbed by the Act are concerned and therefore Counsel urged that the exemption granted could not be said to be in conformity with the guidance afforded by the scheme and the previsions of the Act.
417 Dismissing the petitions, ^ HELD: It is true that under sec.
4 of the Tamil Nadu Co operative Societies Act the very object of every co operative society registered thereunder is the promotion of economic interests of its members and sec.
62 of the Act provides for payment of dividends on shares to its members as also for payment of bonus to its members and paid employees.
But these aspects of a co operative society do not mean that it could be likened to any other body undertaking similar activities on commercial lines and to do so would be to miss the very basis on which the co operative movement was launched and propagated and has been making progress in the country during the last several decades.
Indisputably, co operative societies which carry on their activities in various fields do so for the purpose of attaining the social and economic welfare of a large section of the people belonging to the middle class and the rural class by encouraging thrift, self help and mutual aid amongst them, especially by eliminating the middle man.
But the object of promoting the economic interrupts of the members has to be achieved by following co operative principles where the profit motive will be restricted to a reasonable level unlike other commercial bodies where sky is the limit so far as their desire to earn profits is concerned.
Sections 4 and 62 of the Act and Rule 46 of the Rules make it clear that in the matter of distribution of profits by way of payment of dividend to members and payment of bonus to members as well as paid employees restrictions have been placed by law and the same is maintained at a reasonable level and considerable portion of the net profits is apportioned and required to be carried to various kinds of funds, like co operative development fund, co operative education fund, reserve fund etc.
In fact it is such statutory appropriations and restrictions on payment of dividends and bonus which differentiates co operative societies from other bodies undertaking similar activities on commercial lines and therefore, the buildings belonging to such co operative societies are substantially different from the buildings owned by private landlords.
Further it has to be appreciated that these statutory provisions are applicable to all types of co operative societies specified in Rule 14 whatever be their nature or functions.
The profit element being maintained at a reasonable level by provisions of law in all types of co operative societies there is every justification for the assumption that no co operative society will indulge in rack renting or unreasonable eviction.
In this view of the matter if the State Government came to the conclusion that in the case of co operative societies there being no apprehension that they would indulge in either of these two evils exemption from the provisions of the Tamil Nadu Act No. 18 of 1960 should be granted in favour of buildings belonging to such co operative societies it will have to be regarded is a legitimate exercise of the power conferred on it under sec.
29 of the Act the same being in conformity with the guidance afforded by the preamble and provisions of the Act in that behalf.
[422D 5; 424C G] Besides, on the factual side of the issue the facts and circumstances put forward by the State Government in its counter affidavit which have gone unchallenged clearly show that the differentia on the basis of which the classification was made had a clear nexus with the object with which the power to grant exemption has been conferred upon the State and therefore the impugned notification will have to be regarded as valid.
[425E F] 418


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05 of 1953.
Under article 32 of the Constitution of India for the enforcement of Fundamental Rights and APPELLATE JURISDICTION: Case No.1 of 1950 1047 Appeal under section 205 of the Government of India Act, 1935, from the Judgment and Decree, dated the 13th September, 1949, of the High Court of Judicature, Orion, in First Appeal No. 39 of 1949 arising out of the Judgment and Decree, dated the 11th September, 1945, of the Court of the District Judge, Cutback, in Original Suit No. 3 of 1943.
N. C. Chattanooga (B. K. Saran and B. C. Pratt, with him) for the petitioners and appellants Nos. 1 to 13.
section P. Sinclair (B. K. Saran and R. C. Pratt, with him) for appellants 14 to 16.
M. C. Seth (G. N. Jose, with him) for respondents in both the matters.
Agent R. H. Debar.
March 16.
delivered by MUKHERJEA J.
These two connected matters are taken up together for the sake of convenience and may be,disposed of by one and the same judgment.
Petition ;No. 405 of 1953 has been presented to this court under article 32 of the Constitution and the petitioners are the Mahants or superiors of two ancient and well known religiousinstitutions of Orissa, both of which have endowmentsof considerable value situated within and outside the Orissa State.
An Act, known as the .Orissa Hindu Religious Endowments Act was passed by the Orissa Legislative Assembly functioning under the Government of India Act, 1935.
in the vear 1939 and it received the assent of the Governor General on the 31st August, 1939.
The object of the Act, as stated in the preamble, is "to provide for the better administration and governance of certain Hindu religious endowments" and ' the expression "religious endowment" has been defined comprehensively in the Act as meaning all property belongto or given orendowed for the support of Maths or temples or for the performance of any service orcharity connected therewith.
The whole scheme of the Act is to vest the control and supervision of public temples and Maths in a statutory authority designated as the Commis.
sioner of Hindu Religious Endowments and to confer 1048 upon him certain powers with a view to enable him to exercise effective control over the trustees of the Maths and the temples.
The Commissioner is required to be a member of the Judicial or Executive Service of the Province and his actions are subject to the general control of the provincial Government.
For the purpose, of meeting the expenses of the Commissioner and his staff, every Math or temple, the annual income of which exceeds Rs. 250, is required under section 49 of the Act to pay an annual contribution at certain percentage of the annual income which increases I progressively with the increase in the income.
With this contribution as well as loans and grants made by the Government, a special fund is to be constituted as provided by section 50 and the expenses of administering the religious endowments are to be met out of this fund.
In July, 1940, a suit, out of "which the Case No. 1 of 1950 arises, was instituted in the court of the District Judge of Cuttack by a number.
of Mahants including .the two petitioners in the petition under article 32 before us.
praying for a declaration that the Orissa Relig ious Endowments Act of 1939 was ultra vires the Orissa Legislature and for other consequential reliefs.
The validity of the Act was challenged substantially on three grounds, namely, (1) that the subject matter of legislation was not covered by Entry 34 of List 11 in Schedule VII of the Government of India Act, 1935 ; (ii) that the, contribution levied under, section 49 was, in substance, a tax and could not have been imposed by the Provincial Legislature; and (iii) that as the provisions of the Act affected the income of properties situated outside the territorial limits of the Province, the Act was extra territorial in its operation and hence inoperative.
All these contentions were overruled by, the District Judge of Cuttack, who by his judgment dated the 11 th September, 1945, dismissed the plaintiffs ' suit.
Against that decision, an appeal was taken by the plaiitiffs to the High Court of Orissa and the appeal was heard by a Division Bench, consisting of Jagannedbadas and Narasimham JJ.
The learned Judges by two separate but concurring judgments, dated the 13th September.
1949, affirmed the decision 1049 of the District Judge and dismissed the appeal.
it is against this judgment that Case No. 1 of 1950 has come to this court.
During the pendency of the appeal in this court the Constitution came into force on the 26th January , 1950, with its chapter on fundamental rights, and the Orissa Hindu Religious Endowments Act also has been amended recently by the State Legislature of Orissa by Amending Act II of 1952.
In view of these changes, the present application under article 32 of the Constitution has been filed by two of the Mahants who figured as plaintiffs in the Declaratory Suit of 1940 and the application has been framed comprehensively so as to include all points that could be urged against the validity of the Orissa Hindu Religious Endowments Act on the basis of the provisions of the Constitution.
It is conceded by both the parties that in these circumstances it is not necessary for us to deal separately with the appeal.
The decision, which we would arrive at in the petition under article 32, will be our pronouncement on the validity or otherwise of the different provisions of the impugned Act.
It may be stated at the beginning that the Orissa Hindu Religious Endowments Act of 1939 follows closely the pattern of the Madras Hindu Religious Endowments Act of 1927 which has been now replaced by a later Act passed by the State Legislature of Madras in 1951 and described as the Madras Hindu Religious and Charitable Endowments Act.
The grounds upon which the validity of the Orissa Act has been attacked be fore us are substantially the same as were urged in assailing the constitutional validity of the Madras Act, in Civil Appeal No. 38 of 1953 (The Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar), the judgment in which has just been delivered.
The grounds urged can be classified conveniently under two heads.
In the first place, some of the provisions of the impugned Act have been challenged as invalid on the ground that they invade the fundamental rights of the petitioners guaranteed under articles 19(1) (f), 25 26, and, 27 of the Constitution.
The other branch of the contention (1) ; 1050 relates to. the provision for levying contribution on religious institutions under section 49 of the Act and this provision has been impeached firstly on the ground that the contribution being in substance a tax, it was beyond the competency of the Provincial Legislature to enact any such provision.
The other ground raised is, that the payment of such tax or imposition is prohibited by article 27 of the Constitution.
The general questions relating to the scope and ambit of the fundamental rights embodied in articles 19 (1) (f ), 25, 26 and 27 of the Constitution in connection with Maths and temples have been discussed fully in our judgment in the Madras appeal referred to above and ,it would not, be necessary to reiterate these discussions for purposes of the present case.
We can straightaway proceed to examine the different provisions of the Act to which objections have been taken by the learned counsel appearing for, the petitioners in the light of the principles which this court has laid down in the Madras appeal.
It may be said that many of the impugned provisions of the Orissa Act correspond more or less.
to similar provisions in the Madras Act.
Section 11 of the Act has been objected to on the ground that it vests almost , an uncontrolled and arbitrary power upon the Commissioner.
This section corresponds to section 20 of the Madras Act and as has been pointed out in our Judgment, in the Madras appeal, the powers, though seemingly wide, can be exercised only to ensure that Maths and temples are properly maintained and the endowments are properly administered.
As the object and purpose for which these powers could be exercised have been indicated preoisely we do not think that it, could be said that the authority vested in the Commissioner is in any way arbitrary.or unrestricted.
The explanation attached to the section only makes it clear that the general power conferred upon the Commissioner extends to passing of interim orders as the Commissioner might think fit.
Section 14 lays down the duties of the trustee and the care which he should exercise in the management 1051 of the affairs of the religious institutions.
The care, which he has to exercise, is What is demanded normally of every trustee in charge of trust estate and the standard is that of a man of ordinary prudence dealing with his own funds or properties.
This is a matter relating to the administration of the estate and and does not interfere with any fundamental rights of the trustee.
For the same reason, we think, no objection could be taken to the provision of section 28 which lays down that the trustee of a temple shall be bound to obey all orders issued under the provisions of the Act by the Commissioner. if the orders are lawful and made in pursuance of authority properly vested in the officer, no legitimate ground could be urged for not complying with the orders.
The sections of the Act, to which serious objections have been taken are sections 38, 39, 46, 47 and 49.
Sections 38 and 39 relate to the framing of a scheme.
A scheme can certainly be settled to ensure due administration of the endowed property but the objection seems to be that the Act provides, for the framing.
of a scheme not by a civil Court or under its supervision but by the Commissioner who is a mete administrative or executive officer.
There is also no provision for appeal against his order to the court.
Under section 58 of the Madras Act, although the scheme is to be framed by the Deputy Commissioner, an appeal lies against his order to the Commissioner in the first place.
A party aggrieved by the order of the Commissioner again has a right of suit in the ordinary civil court, with a further right of appeal to the High Court.
It seems that sub section (4) of section 39 of the impugned Act, as it originally stood, allowed the, trustee or any person having an interest in the institution to file a suit in a civil court to modify or set aside an order framing a scheme; and under section 40, the order made under section 39 could be final only subject to the result of such suit.
Subsection (4) of section 39, however, was deleted by the Amending Act of 1952, and under the new sub section (4), the order passed by the Commissioner has been made final and conclusive.
Strangely, however, section 41 of the Act has still been retained in its 1052 original shape and that speaks of an order settling a scheme being set aside or modified by the court.
Obviously, this is careless drafting and the Legislature did not seem to have adverted to the apparently contradictory provisions that it made.
The learned Attorney General, appearing for the State of, Orissa, has also conceded that these sections require redrafting.
We think that the settling of a scheme in regard to a religious institution by an executive officer without the intervention of any judicial tribunal amounts to an unreasonable restriction upon the right of property of the superior of the religious institution which is blended with his office.
Sections 38 and 39 of the Act must, therefore, be held to be invalid.
There is nothing wrong in the provision of section 46 itself but legitimate exception, we think, can be taken to the proviso appended to the section.
Under the law, as it stands, the Mahant or the superior of a Math has very wide powers of disposal over the surplus income and the only restriction that is recognised is that he cannot spend the income for his own personal use unconnected with the dignity of his office.
The purposes specified in section 46 are all conducive to the benefit of the institution and there is no reason why the discretion of the trustee in regard to the spending of surplus for such purposes also should be still further restricted by directions which the Commissioner may choose to issue.
Section 47 (1) lays down how the rule of cy pres is to be applied not merely when the orginal purpose of the trust fails or becomes incapable of being carried out either in whole or in part by reason of subsequent events, but also where there is a surplus left after meeting the legitimate expenses of the institution.
Objection apparently could be raised against the last provision of the sub section, but as subsection(4) of section47gives the party aggrieved by any order of the Commissioner in this respect to file a suit in a civil court and the court is empowered to modify or set aside such order of the Commissioner, we do not ,think that there is any reasonable ground for complaint.
The only other section that requires consideration is sect ion 49 under which every Math or temple having 1053 an annual income exceeding Rs. 250 has got to make an annual contribution for meeting the expenses of the Commissioner and the officers and servants working under him.
The first question that arises with regard to this provision is whether the imposition is a tax or a fee; and it is not disputed that if it is a tax, the Provincial Legislature would have no authority to enact such a provision.
This question has been elaborately discussed in our judgment in the Madras appeal referred to above and it is not necessary to repeat the discussions over again.
As has been pointed out in the Madras appeal, there is no generic difference between a tax and a fee and both are different forms in which the taxing power of a State manifests itself.
Our Constitution, however, has made a distinction between a tax and a fee for legislative purposes and while there are various entries in the three lists with regard to various forms of taxation, there is an entry at the end of each one of these lists as regards fees which could be levied in respect of every one of the matters that are included therein.
A tax is undoubtedly in the nature of a complusory exaction of money by a public authority for public purposes, the payment of which is enforced by law.
But the essential thing in a tax is that the imposition is made for public purposes to meet the general expenses of the State without reference to any special benefit to be conferred upon the payers of the tax.
The taxes collected are all merged in the general revenue of the State to be applied for general public purposes.
Thus, tax is a common burden and the only return which the taxpayer gets is the participation in the common benefits of the State.
Fees, on the other hand, are payments primarily in the public interest but for some special service rendered or some special work done for the benefit of those from whom payments are demanded.
Thus in fees there is always an element of quid pro quo which is absent in a tax.
Two elements are thus essential in order that a payment may be regarded as a fee.
It the first place,, it must be levied in consideration of certain services which the individuals accepted either willingly or unwillingly.
But this by itself is not enough to make 136 1054 the imposition a fee, if the payments demanded for rendering of such services are not set apart or specifically appropriated for that purpose but are merged in the general revenue of the State.to be spent for general public purposes.
Judged by this test, the contribution that is levied by section 49 of the Orissa Act will have to be regarded as a fee and not a tax.
The payment is demanded only for the purpose of meeting the expenses of the Commissioner and his office which is the machinery set up for due administration of the affairs of the religious institution.
The collections made are not merged in the general public revenue and are not appropriated in the manner laid down for appropriation of expenses for other public purposes.
They go to constitute the fund which is contemplated by section 50 of the Act and this fund, to which also the Provincial Government contributes both by way of loan and grant, is specifically set apart for the render ing of services involved in carrying out the provisions of the Act.
We think, therefore, that according to the Principles which this court has enunciated in the Madras appeal mentioned above, the contribution could legitimately be regarded as fees and hence it was within the competence of the Provincial Legislature to enact this provision.
The fact that the amount of levy is graded according to the capacity of the payers though it gives it the appearance of an income tax, is not by any means a decisive test.
We are further of opinion that an imposition like this cannot be said to be hit by article 27 of the Constitution.
What is forbidden by article 27 is the specific appropriation of the proceeds of any tax in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.
The object of the contribution under section 49 is not the fostering or preservation of the Hindu religion or of any denomination within it; the purpose is to see that religious trusts and institutions wherever they exist are properly administered.
It is the secular administration of the religious institutions that the Legislature seeks to control and the object, as enunciated in the Act, is to ensure that the endowments attached to the religious institutions are properly administered and their income is duly appropriated for purposes for which they were founded or exist.
As there is no question of favouring any particular religion or religious denomination, article 27 could not possibly apply.
The result is that, in our opinion, the only sections of the Act, which are invalid, are sections 38, 39 and the proviso to section 46.
The application under article 32 is, therefore, allowed to this extent that a writ in the nature of mandamus would issue restraining the Commisoner and the State Government enforcing against the petitioners the provisions of the sections mentioned above.
The other prayers of the petitioners are disallowed.
No separate order is necessary in Case No. I of 1950, which will stand dismissed.
We make no order as to costs either in the petition or in the appeal.

Output:
Held, that sections 38 and 39 and the proviso to section 46 of the Orissa Hindu Religious: Endowments Act, 1939 as amended by the Amending Act II of 1952 are ultra vires articles 19(1) (f), 25 and 26 of the Constitution.
The annual contribution provided in section 49 of the Act is in the nature of a fee and not a tax and therefore it was within the competence of the Provincial Legislature to enact such a provision.
Further an imposition like this is not hit by article 27 of the Constitution because the object of the contribution under section 49 is not the fostering or preservation of the Hindu religion or of any denomination within it but the proper administration of religious trusts and institutions wherever they exist.
Civil Appeal No. 38 of 1953 referred to.


Input:
Appeals Nos. 125 to 129 of 1957.
Appeals by special leave from the judgment and decree dated October 7, 1952, of the Bombay High Court in Second Appeals Nos.
601 to 605 of 1952.
S.T. Desai, Avadh Behari and B. P. Maheshwari, for the appellants.
A.V. Viswanatha Sastri and A. G. Ratnaparkhi, for the respondents.
March 14.
The Judgment of the Court was delivered by SHAH, J.
These five appeals raise a common question about the validity of Rule 2C framed by the respondent the Municipality of Barsi under section 58(j) of the Bombay Municipal Boroughs Act, 1925 hereinafter called the Act.
The Lokmanya Mills hereinafter called the appellants are a company registered under the Indian Companies Act holding an expensive area of land City Survey No. 2554 within the Municipal Borough on which are constructed buildings of the factory, ware houses, bungalows and other structures appurtenant to the factory.
The respondent, a Borough Municipality constituted under the Act is by section 73, 308 entitled to levy a rate on lands and buildings and also a water rate.
Under the rules framed by the Municipality house tax and water tax were levied on buildings and non agricultural lands on their annual letting value at uniform rates whether the purpose was residential, business or manufacturing.
In 1944, the Municipality resolved to enhance the assessment of lands and buildings within its area.
After some correspondence with the Commissioner, Central Division, the General Body of the Municipality resolved that the rental value for leaving rates on mills and factories within its limits be fixed at Rs. 40 for every 100 square feet.
Notices of this resolution under section 75(b) of the Act were issued and objections to the proposed enhancement were invited from the taxpayers and after obtaining the approval of the Government of Bombay, the new rules were made operative from April 1, 1947.
The rules relevant for the purposes of these appeals are: Rule 2A: "The assessment of house tax on all lands, buildings and non agricultural lands, other than Government, buildings coming under Proviso A of section 73 of the Bombay Boroughs Act of 1925, at rates mentioned in the Schedule attached to these rules." Rule, 2B: In case Government buildings coming under Proviso A of section 73 of the Bombay Boroughs Act are used beneficially, the assessment of such buildings shall be made as specified in sub section 2 and 3 of section 74.
Rule 2C: As regards Mills, factories and buildings relating thereto, the annual letting value shall be fixed at Rs. 40 per 100 square feet or part thereof for every floor.
, ground floor or cellar and the tax shall be assessed on the said annual letting value, at the ordinary rate.
Explanation: The words "buildings pertaining thereto" include buildings in the compound of the Mills such as ware houses, godowns, shops of the mills etc.
but does not include residential buildings that is to say bungalows and out houses.
Note: Assesstnent shall be made at the ordinary 309 rate on buildings which are not taxed under rule 2C above.
The Municipality prepared an assessment list under the new scheme of taxation in respect of factory buildings and buildings relating thereto and issued notices of demand calling upon the appellants to pay house tax and water tax newly assessed thereon.
The appellants paid under protest the tax demanded, and filed five suits in the 'court of the, Civil Judge, Junior Division of Barsi to recover the amounts levied by the Municipality in excess of the amounts due under the old scheme.
In all these suits, the principal issue raised was about the validity of rule 2C framed by the Municipality for levy of rates "on Mills, Factories and other buildings relating thereto".
The trial court held that rule 2C was valid and within the competence of the Municipality and dismissed the suits for refund of house tax and water tax.
The District Court at Sholapur in appeal declared rule 2C "illegal and ultra vires" and by injunction restrained the Municipality from making any claim or demand for house tax and other taxes from the appellants on the basis of them rule.
The High Court of Judicature at Bombay, set aside the decree of the District Court disagreeing with the view that rule 2C was ultra vires.
In these appeals filed with special leave against the judgments of the High Court, the only question which falls to be determined is whether by rule 2C the Municipality is entitled to collect tax leviable as a rate after computing the annual letting value solely on the area of the factory and buildings related thereto.
By section 73, the Municipality is authorised subject to any general or special orders which the State Government may make in that behalf and to the provisions of as. 75 and 76, to impose for the purposes of the Act any one or more of the classes of taxes, amongst which are included a rate on buildings or lands or both situate within the municipal borough and general water rate which may be imposed in the form of a rate assessed on buildings or lands or in any other form.
Section 75 prescribes the procedure preliminary to imposing a tax.
The procedure for assessing the 310 liability to rates on lands and buildings is prescribed by sections 78 to 84 of the Act which provide for preparation of the assessment list, its authentication and amendment.
When a rate on building or lands or both is imposed, the Chief Officer causes ail assessment list of all buildings or lands or lands and buildings in the municipal borough to be prepared containing inter alia the names of the owner, the valuation based on capital or annual letting value as the case may be on which the property is assessed and the amount of tax assessed thereon.
The expression "Annual; letting value" is defined in section 3(1) of the Act as meaning the annual rent for which any building or land, exclusive of furniture or machinery contained or situate therein or thereon might reasonably be expected to let from year to year, and shall include all payments made or agreed to be made by a tenant to the owner of the" building or land on account of occupation, taxes, insurance or other charges incidental to his tenancy.
By section 78 sub section
(1) cl.
(d) and Explanation to section 75, the rate to be levied on lands and buildings may be assessed on the valuation of the lands and buildings based on capital or the annual letting value.
By the rules in operation prior to April 1, 1947, house tax and water tax were levied as rates in respect of all lands, buildings and non agricultural lands on the annual letting value (except Government buildings).
Even under the new rules, house tax and water tax continued to be levied in respect of all buildings and, non agricultural lands as rates: but the rate in respect of buildings falling within rule 2C was assessed on a valuation computed on the floor area of the structures, and not on the capital value nor on the annual rent for which the buildings may reasonably be expected to let.
This was clearly not a tax based on the annual letting value, for "Annual letting value" postulates rent which a hypothetical tenant may reasonably be expected to pay for the building if let.
A rate may be levied under the Act on valuation made on capital or on the annual letting value.
If the rate 311 is to be levied on the basis of capital value, the building to be taxed must be valued according to some recognised method of valuation: if the rate is to be levied on the basis of the annual letting value, the building must be valued at the annual rental which a hypothetical tenant may pay in respect of the building.
The Municipality ignored both the methods of valuation and adopted a method not sanctioned by the Act.
By prescribing valuation computed on the area of the factory building, the Municipality not only fixed arbitrarily the annual letting value which bore no relation to the rental which a tenant may reasonably pay, but rendered the statutory right of the tax.
payer to challenge the valuation illusory.
An assessment list prepared under section 78, before it is authenticated and finalised, must be published and the taxpayers must be given an opportunity to object to the valuation.
By the assessment list in which the valuation is not based upon the capital value of the building or the rental which the building may fetch, but on the floor area, the objection which the tax payers may raise is in substance restricted to the area and not to the valuation.
Counsel for the Municipality sought to rely upon The Madras and Southern Mahratta Railway Co., Ltd. vs The Bezwada Municipality (1) decided by the Judicial Committee of the Privy Council, in support of the plea that the rate based on valuation in proportion to the floor area is validly levied.
By section 81 sub section
(2) of the Madras District Municipalites Act, 1920, a tax for general purposes and a water and drainage tax were to be levied at such fractions of the annual value of lands or buildings or both as may be fixed by the Municipal Council.
By section 82 Sub section
(2) of that Act, the annual value of lands and buildings was to be the gross annual rent at which they may reasonably be expected to let, but by the proviso, it was enacted that in the case of any Government or Railway building, the annual value of the premises shall be deemed to be 6% of the total of the estimated value of the land and the estimated present cost of erecting the (1) I.L.R. 312 building subject to certain deductions.
The Municipality of Bezwada levied property tax on a piece of vacant land belonging to the Madras and Southern Mahratta Railway Company on the annual value computed at 6% of its capital value.
This method of taxation was challenged by the Railway Company on the contention that all methods of valuation other than the method prescribed by the proviso to section 82(2) were by necessary implication prohibited.
This contention was rejected because the generality of the sub.
stantive enactment was left unqualified except in so far as it concerned the particular subjects to which the proviso related.
Open lands were not covered by the proviso and it was competent to the municipality to levy the tax under section 82(2) on the annual value and that value would be determined by any of the recognised methods of arriving at the rent which a hypothetical tenant 'may reasonably be expected to pay for the lands in question.
This case has in our judge ment no relevance to the present case.
If the Municipality of Barsi had adopted any of the recognised methods of valuation for assessing the annual letting value, the tax would not, be open to challenge, but the method adopted was not a recognised method of levying the rate. ' The High Court relied upon its earlier judgment in The Borough Municipality of Amalner vs The Pratap Spinning Weaving and Manufacturing Co.p Ltd., Amalner (1).
In that case, the court negatived the challenge to the validity of the rules similar to those impugned in these appeals.
The Amalner Municipality had by rules framed under the Bombay Municipal Boroughs Act sought to levy a rate equal to a per centage of the annual letting value which was computed on the floor area of "mills and factories".
The court held that the method of taxation adopted by the Municipality had remained unchallenged for a long time,, that the rules had been sanctioned by the Government and they were not shown to be "capricious, arbitrary and unreasonable and that the valuation of the property by reference to the floor area was (1) I.L.R. 313 not altogether unknown to the law of rating.
The High Court also observed that in assessing the rent 2 which a hypothetical tenant may pay several methods are open to the Municipality and if on examining the cases of all the factory buildings within their jurisdiction, the Municipality concluded that the rent which the hypothetical tenant may reasonably be expected to pay for those buildings fits in with the rent which they had fixed by adopting the flat and uniform rate the principle of fixing the annual letting value on the basis of the floor area would not be open to challenge.
It was assumed in that case that all factory buildings within the area of the Amalner Municipality were.
alike in essential features and were intended to be used for purposes which were alike, and that probably the Municipality may have been satisfied that the principle enunciated in the rule impugned worked out on the whole as a fair basis for determining the valuation of the building in question.
In our view, this approach to a rating problem arising under the Act is not permissible.
In any event, there is no evidence on the record of this case that the factories and "buildings relating thereto" such as ware houses, godowns and shops of the Mills situate in the compound of the mills, may be separately let at the uniform rate prescribed ' by the Municipality.
The vice of the rule lies in an assumed uniformity of return per square foot which structures of different classes which are in their nature not similar, way reasonably fetch if let out to tenants and in the virtual deprivation to the rate payer of his statutory right to object to the valuation.
Another judgment of the Bombay High Court in Motiram Keshavdas vs Ahmedabad Muncipal Borough (1) calls for reference.
It was held in Motiram 's case that a water tax imposed by the Ahmedabad Municipality as a rate not depending upon the value of the property assessed but in lump sum was not a rate for the purpose of section 73(x) of the Bombay Municipal Boroughs Act, 1925 and the rule which authorised the levy of such a lump sum was ultra vires (2) (1942) Bom.
L. R.280 40 314 These appeals must be allowed and the decrees passed by the High Court set aside and the decrees passed by the District Court of Sholapur restored with costs in this court and the High Court.
One hearing fee.
Appeals allowed.

Output:
The Bombay Municipal Boroughs Act, 1925, empowered a municipality to levy rates on lands and buildings which were to be assessed on the valuation based on the capital or the annual letting value.
The Act defined the annual letting value inter alia as the annual rent for which any building or land might reasonably be expected to let from year to year.
The General Body of the Municipality of Barsi framed new rules under section 58 of the Act for levying rates: for all buildings and non agricultural lands the rate was to be levied on the annual letting value, but for mills and factories and buildings relating thereto it was provided by r. 2C that the annual letting value was to be fixed on the floor area.
The Municipality issued notices of demand under the new r. 2C calling upon the appellant (which is a company owning a textile mill) to pay house and water taxes which were assessed as rates which was paid by the appellants under protest.
The question to be determined was whether by r. 2C the Municipality was entitled to collect tax leviable as a rate after computing the annual letting value solely on the area of the factory and building relating thereto.
Held, that a rate may be levied by a municipality under the Bombay Municipal Boroughs Act, 1925, on the valuation made on the basis of capital or on the annual letting value of a building and not on a valuation computed merely on the floor area of the structures, such a rate was clearly not a tax based either on the capital value or on the annual letting value, for "annual letting value" postulates rent which a hypothetical tenant may reasonably be expected to pay for the building if let.
The Municipality had no power under the Act to ignore the methods of valuation prescribed by the Act, and to adopt a method not sanctioned by the Act.
By prescribing valuation computed on the area of the factory building the Barsi Municipality not only fixed arbitrarily the annual letting value which bore no relation to the rental which a hypothetical tenant may reasonably be expected to pay but rendered the statutory right of the tax payer to challenge the valuation illusory as the objection which the tax payer could raise thereto was in substance restricted to the area of the building and not to its valuation.
307 The rule adopting a flat and uniform rate on the assumption that all factory buildings within the area of a municipality were not alike in essential features and were not intended to be used for purposes which were alike was not permissible under the Act.
The vice of the rule lies in an assumed uniformity of return per square foot which structures of different classes in their nature not similar, may reasonably fetch if let out to tenants and in the virtual deprivation to the rate payer of his statutory right to object to the valution.
Rule 20 by the Barsi Borough Municipality under section 58 of the Bombay, Municipal Boroughs Act, 1925, was illegal and ultra vires.
The Madras and Southern Mahratta Railway Co. Ltd. vs The Bezwada Municipality I.L.R. , not applicable.
The Borough Municipality of Amalner vs The Pratap Spinning Weaving and Manufacturing Co. Ltd., Amalner, I.L.R. , not approved.
Motiram Keshavdas vs Ahmedabad Municipal Borough, , referred to


Input:
Appeal No. 1787 of 1966.
Appeal from the judgment and decree dated May 18, 1964 of the Kerala High Court in Appeal Suit No. 591 of 1963.
125 D. Narsaraju and A. section Nambiar, for the appellants.
W.S. Badingay, R. Mahalingier and Ganpat Rai, for respondents Nos. 1 and 2.
The Judgment of the Court was delivered by Ray, J.
This is an appeal from the judgment dated 18 May, 1964 of the High Court of Kerala allowing the appeal in part and allowing declaration to the effect that the plaintiffs are next in the line of succession to V.L. Lazar and T.V. John respectively and that they are entitled to claim an appointment as trustees.
The High Court, however, concluded by saying that such appointment could be made in a properly framed suit under section 92 of the Code of Civil Procedure.
Counsel for the appellants contended that the High Court was in error in making the declaration particularly when the High Court said that such appointment could be made only in a properly framed suit under section 92 of the Code.
In order to appreciate the matters in controversy it is necessary to refer to a few facts and the frame of the suit.
The plaintiffs filed this suit in 1961 for a declaration that defendants numbered 4 to 9 were "trespassers" on the trust and that all acts and proceedings of defendants numbered 1 to 9 done since the resignation of T.V. John and V.L. Lazar in respect of the administration of the trust are invalid and void; that the plaintiffs be appointed as trustees; that defendants numbered 10 to 11 be declared to be, and to have always been, lawful trustees and for injunction restraining defendants numbered 4 to 9 from interfering with the trust; that an enquiry be made into their administration and accounts, recovery of properties and funds misused, wasted, disbursed or appropriated, and that defendant numbered 1 to 3 be declared to be unfit to continue as trustees.
There was a deed of settlement dated 20 December, 1953 executed by a Christian T.V. Kochuvareed called "Thattil Kochuvareed Educational and Charitable Trust".
Apart from the settlor, V.L. Lazar father of the first plaintiff and T.V. John father of the second plaintiff and defendants numbered 1 to 3, 10 and 11 were trustees.
On 27 May, 1957 V.L. Lazar resigned from the trusteeship.
On 12 March, 1960 T.V. John followed suit.
The settlor and the rest of the trustees appointed six more trustees being defendants numbered 4 to 9 inclusive.
The settlor Kochuvareed died on 26 July, 1961.
On 28 November, 1961 respondents numbered 1 and 2 namely, John son of V.L. Lazar and Varghese son of T.V. John the 126 plaintiffs filed suit O.S. No. 115 of 1961 claiming, inter alia, that the plaintiffs be appointed as trustees.
At the trial two preliminary issues were framed: Whether the suit was maintainable due to want of compliance with section 92 of the Code of Civil Procedure and whether the Court had jurisdiction to try this suit relating to trust.
The trial Court came to the conclusion that the suit was within the mischief of non compliance with the provisions of section 92 of the Code of Civil Procedure.
The trial Court on 12 March, 1962 dismissed the suit and held that the suit had to be instituted after obtaining sanction under section 92 of the Code.
The plaintiffs filed an appeal.
On appeal the High Court on 20 August, 1962 allowed the appeal in part and set aside the dismissal of the suit in so far as it related to prayer 'e ' and remanded the suit to the trial Court for trial in respect of that claim.
The trial Court on remand by judgment dated 23 August, 1963 held that the suit as flamed was maintainable and the plaintiffs were entitled to be declared as rightful trustees but the second plaintiff would have to exercise rights as trustee only on attaining majority.
Prayer 'e ' in the plaint was as follows : "That plaintiffs be appointed to their rightful place as trustees and the second plaintiff being a minor now, be permitted to exercise his rights and safeguard his interests until he attains majority, through his 'Next Friend, namely his father".
The appellants, viz., defendants numbered 4 to 9 preferred an appeal.
The High Court on 18 May, 1964 allowed the appeal in part and altered the declaration to the effect that the plaintiffs were next in the line of succession and that they were entitled to claim appointment as trustees, but such appointment could be only in a properly framed suit.
Counsel for the appellants contended that prayer 'e ' was within the mischief of section 92 of the Code of Civil Procedure.
It was further said that the plaintiffs (respondents 1 and 2) filed a fresh suit O.S. No. 1 of 1965 in the District Court, Trichur under section 92 of the Code of Civil Procedure praying, inter alia, for reliefs of removal of defendants numbered 4 to 9 and appointment of the plaintiffs as trustees in place of their respective fathers who resigned from such office and for other reliefs.
Counsel for the appellants contended that the finding in the present appeal that the plaintiffs were entitled to a declaration for appointment would constitute res judicata unless the same finding was set aside and 127 the matter was kept entirely open in the new suit filed by respondents 1 and 2.
Counsel for the respondents contended that the decision of the High Court could be upheld because all that it said was that the plaintiffs were entitled to a right and the question of appointment would be canvassed in the suit.
This contention is unacceptable because a suit for a bare declaration of right without further relief for possession and other reliefs as the facts and circumstances would require is not supportable.
The provisions of section 92 of the Code of Civil Procedure indicate, inter alia, that a suit for appointment of new trustees is competent only after compliance with the provisions of section 92 of the Code.
The plaintiffs, namely, respondents 1 and 2 in the present case, alleged that defendants numbered 4 to 9 were strangers and "trespassers" in relation to the trust, and that the other defendants illegally introduced defendants numbered 4 to 9 into the Board of Trustees.
The plaintiffs further alleged that defendants numbered 1 to 9 were guilty of waste and misappropriation.
The plaintiffs further alleged that they had exclusive right to be appointed trustees.
Section 92 of the Code of Civil Procedure prohibits a plaintiff from obtaining relief of appointment of new trustees without the compliance with the provision of the said section of the Code.
The only question is whether prayer 'e ' in the plaint can be said to be one for appointment of new trustees.
The plaintiffs asked for appointment.
It was said by counsel for the respondents that the plaintiffs under the deed of trust could be appointed trustees.
Reliance was placed on clause (6) of the deed of trust which, inter alia, stated that in the case of a vacancy, the remaining trustees were to appoint a new trustee.
It, therefore, follows that even under clause (6) of the deed of trust it would be an appointment of new trustees.
The trustees in the present case did not appoint new trustees.
The plaintiffs, therefore, came to court.
The reason why the plaintiffs sought the aid of the Court is the appointment of trustees.
It is only because the other trustees did not appoint a new trustee that the plaintiffs took recourse to the institution of the suit for the appointment of trustees.
Further, unless the defendants are removed there cannot be an appointment of new trustees.
We are, therefore, of opion that prayer 'e ' in the present case, viz. the plaintiffs be appointed as trustees falls within the provisions of section 92 of the Code.
If as we held that the appointment of new trustees falls within section 92 of the Code can it yet be said that the plaintiffs will be entitled to a bare declaration of their right to be appointed.
In the first place, it will be granting them the right to be appointed 128 which itself is the foundation of appointment.
If the appointment fails within the vice of section 92 any decision giving them the right "to be appointed will be prejudging the question and will be an impediment as far as the defendants are concerned in questioning the right of the plaintiffs to be appointed as trustees.
Secondly, it is well settled that if any matter is directly prohibited, the same cannot be achieved indirectly.
The appointment of new trustees is prohibited ' in the absence of the compliance with the provisions of section 92 of the Code.
If a right is granted to the plaintiffs to be appointed as trustees it will amount to an indirect way of giving the plaintiffs the relief of the right to be appointed.
It will be particularly so because the right will be res inclusa and will, therefore, be res judicata.
The right will not be open to be questioned in subsequent proceedings.
Thirdly, if the appointment of new trustees cannot be proceeded with in the absence of compliance with the provisions of section 92 of the Code and when a suit has been instituted by the plaintiffs for the self same reliefs after compliance with section 92 of the Code it is all the more necessary that the entire question of appointment which presupposes as its foundation the right to be appointed should be gone into the newly instituted suit in 1965 to which reference is made earlier.
Fourthly, a bare declaration of right will be within the mischief of section 42 of the and section 34 of the .
We are, therefore, of opinion that the judgment of the High Court giving the plaintiffs the right to be appointed trustees should be set aside.
It is made clear that contentions of the rival parties in the newly instituted suit are left open.
The finding of the High Court and the: declaration granted by the High Court are both set aside.
The suit is, therefore, dismissed.
For these reasons, the appeal is accepted and is allowed.
The appellants will be entitled to costs.
V.P.S. Appeal allowed.

Output:
By a deed of settlement, the settlor appointed besides himself, the father of the first plaintiff, the father of the second plaintiff, and defendants 1 to 3 and 10 and 11, as.
trustees of an Educational and Charitable Trust.
On the resignation of the fathers of the two plaintiffs, the remaining trustees appointed defendants 4 to 9 as trustees.
The plaintiffs flied a suit making allegations against defendants 1 to 9 and claimed that they should be appointed as trustees.
The High Court, in 'appeal, gave a declaration to the effect that the plaintiffs were; next in the line of succession, that they were entitled to claim appointment as trustees, but that such appointment could be made only in a properly framed suit after complying with the requirements of section 92, Civil Procedure Code.
The plaintiffs thereupon filed a fresh suit under section 92, C.P.C.
Meanwhile, the defendants in the ,earlier suit filed an appeal against the judgment of the High Court, to this Court.
HELD: The suit was for appointment of the plaintiffs as trustees and fell within the provisions of section 92, C.P.C.
Therefore, the judgment of the High Court giving the plaintiffs the right to be appointed as trustees, when the provisions of the section were not complied with, should be set aside.
[127 H; 128 E] (a) If the appointment fell within the vice of section 92 any decision giving the plaintiffs the right to be appointed will be prejudging the question and would be an impediment as far as the defendants are concerned, in questioning, in the second suit, the right of the plaintiffs to be appointed as trustees.
[128 A B] (b) If the right to be appointed as trustees were to be granted 10 the plaintiffs in the absence of compliance with the provisions of the section, it would amount to an indirect way of giving what was directly prohibited.
[128 B] (c) If the declaration were 'allowed to stand it would operate as res judicata and it would not be open to the defendants to question it in the subsequent proceedings.
flied for the same relief after compliance with the section.
[128 B C] (d) A hare declaration of the right without consequential relief will be within the mischief of section 42 of the or section 34 of the .
[128 D E]


Input:
Appeals Nos. 240 and 241 of 1969.
Appeals from the judgment and decree dated December 18, 1968 of the Allahabad High Court in Civil Misc.
Writ No. 4697 of 1968.
J. P. Goyal and Sobhag Mal Jain, for the appellant (in both the appeals).
L. M. Singhvi and O. P. Rana, for the respondents ( in both the appeals).
The Judgment of the Court was delivered by Hegde, J.
These are appeals by certificate.
They are by the same appellant and they raise common question of law.
Hence they are considered together.
Two questions of law were urged on behalf of the appellant in support of the appeals.
The first contention urged was that 147 Section 3 D(1) of the U.P. Sales Tax Act, 1948 (to be hereinafter referred to as the Act) is ultra vires the Constitution, firstly because that under that section excessive legislative power had been delegated to the State Government and secondly on the. ground that it discriminates between the registered dealers who made their purchases through licensed dealers and the registered .
dealers who made their purchases through dealers who are not licensed.
The second contention taken was that notification No. ST 7122/X 900(16)64 dated October 1, 1964 issued under section 3 D(1) of the Act imposing purchase tax on oil seeds is invalidas it contravenes section 3AA of the Act.
We have considered the first ground of attack in Civil Appeals, Nos. 362 and 1692 of 1969 (Mls.
Sita Ram Bishambhar Dayal etc.
vs State of U.P.) in which we have delivered judgment just now.
For the reasons mentioned therein, the contention that section 3 D(1) is ultra vires the Constitution fails.
The only surviving question is whether the notification re ferred to earlier is violative of section 3AA of the Act.
Before examining that contention, it is necessary to set out the, relevant facts.
The appellant is a partnership firm.
It carries on business as dealers in roundnuts, oil seeds and Arhar.
For the assessment years 1965 66, 1966 67, the Sales tax Officer, Rampur assessed ' the appellant to sales tax on the turnover of the groundnuts oil manufactured by the appellant and to purchase tax on the turnover of the oil seeds and foodgrains.
The appellant unsuccessfully appealed against the assessment orders.
Thereafter it took up the matter in revision before the revising authority.
There, again it substantially failed.
Aggrieved by that decision, he moved ' the High Court of Allahabad for a writ of certiorari quashing the levy of purchase tax imposed on him in respect of his purchases of oil seeds.
The High Court rejected those petitions.
Hence these appeals.
We shall now extract the impugned notification to the extent,: it is material for the purpose of this appeal.
It reads thus: "Not.
No. ST 7122/X 99(16)64 dated October 1, 1964.
In exercise of the powers under sub section (1) of section 3 D of the Uttar Pradesh Sales Tax Act, 1948 (U.P. Act No. XV of 1948), the Governor of Uttar Pradesh is pleased to notify that with effect from October 1, 1964, the turnover of first purchases in respect 148 of goods mentioned below shall be liable to tax under Section 3 D of the said Act.
Name of goods Rate of tax.
Foodgrains including cereals and pulses1 .5 paisa per rupee 2.
Gur 3 paisa per rupee 3.
Oilseeds 2 paisa per rupee As per this notification a purchase tax of 2 paise per rupee ,,on the turnover of the first purchase of oil seeds is leviable.
It is contended that this notification violates section 3AA of the Act.
Section 3AA says: "Notwithstanding anything contained in section 3 or 3A, the turnover in respect of the following goods shall not be liable to tax except at the point of sale by a dealer to the consumer, and the rate of tax shall be such, not exceeding the maximum rate for the time being specified in section 15 of the , as may be declared by the State Government by notification in the Official Gazette: (i). . (ii). . (iii). . (iv). . (v). . (vi) oil seeds, that is to say, seeds yielding non volatile oils used for human consumption, or in industry, or in the manufacture of varnishes, soap and the like, or in lubrication, and volatile oils used chiefly in medicines, perfumes, cosmetics and the like.
Unless the dealer proves otherwise, every sale 'by a dealer shall, for the purposes of sub section (1) be presumed to be to a consumer.
Explanation.
A sale of any of the goods specified in sub section
(1) to a registered dealer who does not purchase them for resale in the same condition in which he has purchased them, or to an unregistered dealer shall, for pur poses of this section, be deemed to be a sale to the consumer.
" 149 This section was incorporated into the Act on April 1, 1956.
Under this section, on the goods specified therein, sales tax not, exceeding the maximum rate for the time being specified in section 15 of the can be levied by the StateGovernment on the turnover in respect of sales by dealers to the consumers.
From an analysis of this provision, we get the following: 1.
that tax to be levied is a sales tax; 2. levy in question is a single point levy; 3.
the point of levy is the sale by the dealer to the consumer and 4.
the rate to be fixed by the State Government is not to exceed the maxi mum rate for the time being specified in section 15 of the .
If we hold that provisions contained in section 3AA continue to be in force in respect of dealing in oil seeds then the appellant 'section contention that the impugned levy is an invalid levy succeeds, But the question is whether that contention is correct.
This takes us to section 3 D.
That section reads: "1.
Except as provided in sub section (2), there shall be levied and paid, food each assessment year or part thereof, a tax on the turnover, to be determined in such manner as may be prescribed, of first purchases made by a dealer or through a dealer, acting as a pur chasing agent in respect of such goods or class of goods, and at such rates, not exceeding two paisa per rupee in the case of foodgrains, including cereals and pulses, and pulses, and five paisa per rupee in the case of other goods and with effect from such date, as may, from time to time, be notified by the State Government in this behalf.
Explanation.
In the case of a purchase made by a registered dealer through the agency of a licensed dealer, the registered dealer shall be deemed to be the first purchaser, and in every other case of a first purchase, made through the, agency of a dealer, the dealer who is the agent shall be deemed to be the first purchaser.
x x x x 3.
x x x x 150 4.
On the issue of a notification under this section no tax shall be levied under any other section in respect of the goods so notified.
The provisions of the second and third proviso to Section 3 and of Section 18, shall mutatis mutandis apply in relation to the tax payable under this Section.
x x x x 7.
Unless the dealer proves otherwise to the satisfaction of the assessing authority, every purchase by or through a dealer shall, for the purposes of sub section (1), be presumed to be the first purchase by such dealer and every sale through a dealer shall, for the purposes of sub section (2), be presumed to be sale to a first purchaser.
" For our present purpose, it is not necessary to refer to the second and third provisos to section 3 and section 18.
It may be noted that section 3 D was incorporated into the, Act on August 1, 1958.
The contention on behalf of the appellant was that section 3AA is a special provision regarding certain specified class of goods including oil seeds whereas section 3 D is a general provision.
Hence dealings in respect of oil seeds must be held to be governed exclusively by section 3AA.
In support of his contention, the learned ,Counsel for the appellant called into, aid the rule of construction that a special provision excludes the application of a general provision.
On the other hand, it was contended on behalf of the Revenue that power was conferred on the State Government to levy purchase tax in place of sales tax in respect of any goods ' that may be notified under section 3 D(1) subject only to the conditions mentioned therein.
According to Dr. Singhvi, learned 'Counsel for the Revenue, the legislature left the questions whether in respect of a class of goods, the appropriate levy is sales tax or purchase tax as well as what is the appropriate point of levy, to the State Government because a decision on that question has to be taken on an assessment of various factors, some of which are not constant.
According to him in view of the language employed in sub section
(4) of section 3 D, it is not possible to apply the rule of construction that special legislation in respect of any particular topic should exclude the application of general legislation.
It may be noted that section 3 D was incorporated into the Act much later than section 3AA.
As seen earlier section 3AA was incorpo rated into the Act on April 1, 1956 whereas section 3 D was added 151 on August 1, 1958.
At the time the legislature incorporated into the Act section 3 D, it must have been aware of the existence of section 3AA but yet in sub section
(4) of section 3 D, it declared that on the issue of a notification under that section, no tax shall be levied under any other section in respect of the goods so notified.
The ambit of this provision is very wide and it clearly takes in goods mentioned in section 3AA.
Now turning to section 3AA, it is important to note that it begins by saying "notwithstanding anything contained in section 3 or 3 A".
The non obstante clause does not take in section 3 D.
If the legislature intended to exclude the operation of section 3 D, in respect of matters covered by section 3AA, nothing would have been easier than to say so.
It could have said "notwithstanding anything contained in section 3, 3 A and section 3 D".
But it did not choose to do that.
Therefore there are no grounds to cut down the amplitude of the power conferred on the State Government under sub section
(4) of section 3 D.
The High Court of Allahabad has consistently taken the view that it is open to the State Government to levy purchase tax in exercise of its powers under section 3 D even in respect of goods covered by section 3AA.
We are in agreement with that view.
In the result these appeals fail and they are dismissed with costs.
One set.
K.B.N. Appeals dismissed.

Output:
Under section 3AA of the Uttar Pradesh Sales Tax Act, 1948 "not withstanding anything contained in section 3 or 3A" tax on the turnover of the goods specified therein was not leviable except at the point of sale by a dealer to the consumer.
Section 3D, incorporated into the Act later, authorised the imposition of a tax on the turnover of first purchase and on the issue of a notification under the section no tax could be levied under any other section in respect of the goods so notified.
On the question whether the notification dated October 1, 1964 imposing a purchase tax on oil seeds was invalid for the reason that it contravened section 3AA of the Act, HELD : It is open to the State Government to levy purchase tax, in exercise of its powers under section 3D, in respect of goods covered by section 3AA.
At the time the legislature incorporated into the Act section 3D it must have been aware of the existence of section 3AA, yet, in sub section
(4) of section 3D it declared that on the issue of a notification under the section, no tax shall be levied under any other section in respect of the goods so notified.
The ambit of this provision is very wide and it clearly takes in goods mentioned in section 3AA.
Further, the non obstante clause does not take in section 3D, and if the legislature intended to exclude the operation of section 3D, in respect of matters covered by section 3AA nothing would have been easier than to say so.
Therefore, there are no grounds to cut down the amplitude of the power conferred on the State Government under sub section
(4) of section 3 D. [150 H 151 D]


Input:
ition (Civil) Nos.
15466 67 of 1984 Etc.
(Under Article 32 of the Constitution of India.) M.K. Ramamurthi, P. Gaur and Jitendra Sharma for the Petitioners.
G.B. Pai, O.C. Mathur, Miss Deepa Sabra and Mrs. Meera Mathur for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
All these applications under Article 32 of the Constitution are by officers called the Management Staff employed under the Respondent No. 1 and challenge in all the Writ Petitions is to the age of superannuation at 58 years.
The principal ground of attack is discrimination between the clerical staff for whom the age of retirement is 60 years and the management staff in whose case such terminal point is 58 years.
It is also the claim of the petition 741 ers that in keeping with the current trend in the commercial field such age should be fixed at 60.
Each of the petitioners in Writ Petition Nos.
15466 and 15467 of 1984 and 2745 of 1985 is a recent recruit for the management staff while each of the petitioners in the remaining cases was an employee under the Burmah Shell oil Storage and Distributing Company of India Limited and after the take over of that Company under the Burmah Shell (Acquisition of Undertakings in India) Act, 1976, has become an officer of respondent No. 1.
In Som Prakash Rekhi vs Union of India & Anr., ; this Court has held Respondent No. 1 to be "State" within the meaning of Article 12 of the Constitution.
There has, therefore, been no dispute before us that the petitioners would be entitled to invoke the protection of Article 14 in case there indeed be any discrimination.
This Court in Workmen of the Bharat Petroleum Corporation Ltd. (Refining Division) Bombay vs Bharat Petroleum Corporation Ltd. and another; , directed the retirement age of the clerical staff of the Refinery Division of Respondent No. 1 to be fixed at 60 years.
Petitioners have contended that the disparity in the age of retirement between two groups of employees gives rise to discriminatory treatment.
This stand is not tenable for more than one reason.
Clerical staff and officers of the management staff belong to separate classifications and no argument is necessary in support of it.
Petitioners have not contended and perhaps could not legitimately contend, that the two classes of officers stand at par.
In the Workmen 's case itself, this Court did not extend the benefit of superannuation at the age of 60 to all clerical staff but limited the same to that category of employees working in the Refinery Division, Bombay.
Classification on the basis of reasonable differentia is a well known basis and we are of the view that the petitioners are not entitled in the facts of the case to seek support from Article 14 for their claim.
The claim of the clerical staff arose in an industrial dispute.
The scope of such an adjudication is wide and broad based.
The Tribunal has expansive jurisdiction to exercise when a reference is made to it.
This court in appeal against the Award was exercising the same jurisdiction in that case.
We do not think, it would be appropriate for this Court to exercise that jurisdiction in dealing with an application under Article 32 of the Constitution.
It must also be remembered that officers of the management staff are not workmen.
742 It is true that this Court in Workmen of the Bharat Petroleum Corporation Ltd. (Refining Division) Bombay; , quoted with approval its earlier observations in M/s. British Paints (India) Ltd. vs Its Workmen, ; where it was said: "But time in our opinion has now come considering the improvement in the standard of health and increase in longevity in this country during the last fifty years that the age of retirement should be fixed at a higher level, and we consider that generally speaking in the present circumstances fixing the age of retirement at 60 years would be fair and proper, unless there are special circumstances justifying fixation of a lower age of retirement." Again in G.M. Talang and others vs Shaw Wallace and Co. & Anr., this Court referred to the Report of the Norms Committee where it was said: "After taking into consideration the views of the earlier Committees and Commissions including those of the Second Pay Commission the report of which has been released recently, we feel that the retirement age for workmen in all industries should be fixed at 60." A distinction in the treatment on the point in issue between workmen and officers is clearly discernible in judicial thinking as also expert opinion.
Besides, the petitioners have not brought before the Court all the material relevant to the making of a claim as made from which support could be had.
On the other hand, the Respondent No. 1 in its affidavit in opposition has placed various aspects to justify fixation and continuation of the present age of retirement.
It may be that some day, in keeping with the trend of the times, a claim of the type as laid in these applications may nave to be examined.
We, however, hope that adjudication will be required to be made on more cogent and appropriate material than now.
If this Court is moved, it has then to be considered whether an application under Article 32 is the proper remedy for it.
We are, however, of the view that the petitioners are not entitled to their claim in these applications.
The Writ Petitions are dismissed but without costs.
A.P.J. Petitions dismissed.

Output:
The age of superannuation of the clerical staff employed under the Respondent No. 1 is 60 years while in the case of the management staff the terminal point is 58 years.
The officers of the management staff in their petitions under Article 32 alleged that the disparity in the age of retirement between two groups of employees gives rise to discriminatory treatment.
They also claim that in keeping with the current trend in the commercial field such age should be fixed at 60.
Dismissing the petitions, the Court, ^ HELD: 1.
Classification on the basis of reasonable differentia is a well known basis.
Clerical staff and officers of the management staff belong to separate classifications.
Therefore, the petitioners, in the fact of the case, are not entitled to seek support from Article 14 for their claim.
[741 F] 2.
The claim of the clerical staff arose in an industrial dispute.
The scope of such adjudication is wide and broad based.
The Tribunal has expansive jurisdiction to exercise when a reference is made to it.
This Court in appeal against the Award was exercising the same jurisdiction in that case.
It would not be appropriate for this Court to exercise that Jurisdiction in dealing with an application under Article 32 of the Constitution.
The officers of the management staff are not workmen.
[741 G H] 3.
The petitioners have not brought before the Court all the mate 740 rial relevant to the making of a claim as made from which support could be had.
On the other hand, the Respondent No. 1 in its affidavit in opposition has placed various aspects to justify fixation and continuation of the present age of retirement.
[742 E F] 4.
In keeping with the trend of the times, a claim of the type as laid in the instant applications may have to be examined.
However, that adjudication will be required to be made on more cogent and appropriate material than now.
If this Court is moved, it has then to be considered whether an application under Article 32 is the proper remedy for it.
However, the petitioners are not entitled to their claim in these applications.
[742 F G] Som Prakash Rekhi vs Union of India & Anr., ; , followed.
Workmen of the Bharat Petroleum Corporation Ltd. (Refining Division) Bombay vs Bharat Petroleum Corporation Ltd. and another; , , M/s. British Paints (India) Ltd. vs Its Workmen, ; and G.M. Talang and others vs Shaw Wallace and Co. & Anr., , referred to.