THE STATE OF WEST BENGAL versus SHAIKH SERAJUDDIN BATLEY. UNION OF INDIA : INTERVENER

Harman Singh and Others v. Regional Transport Authority, Oalcittta, and Others.·

1953 Nov. 24.

of Calcutta, then the mere circumstance that by grant of licence at different tariff rates to holders of different taxis and different classes of vehicles some of the exist-ing licence holders are affected cannot bring the case under article 19(1)(g) of the Constitution.

For the reasons given above this appeal has no merits and we accordingly dismiss it with costs.

Appeal disrnissed.

Agent for the appellant : Sulcurnar Ghose. Agent for respondents Nos. 1 & 2: P. K. Bose.

THE STATE OF WEST BENGAL v. SHAIKH SERAJUDDIN BATLEY.

UNION OF INDIA : INTERVENER

[PATANJALI SASTRI c. J., MEHR CHAND MAHAJAN, S. R. DAS, GHULAM HASAN and JAGANNADHADAS JJ.]

Indian Independence (Rights, Property and Liabilities) Order, 1947, Arts. 8(2), 9-Rent payable by Province of Bengal before 15th A·ugiist, 1947-Pitrpose of lease exclusive purpose of West Bengal -Liability of West Be,ngal-" Financial obligations," interprCtation of-Object of Art. 9.

the expression The liability 11 financial to pay rent obligations" under lease does in article not 9 of come the Indian within Independence (Rights, Property and Liabilities) Order, 1947.

The Province of Bengal took certain premises'on lease on the 6th February, 1947, agreeing to pay monthly rent of Rs. 1,800 and the purposes for which the lease was entered into were, after 15th August, 194 7, exclusively purposes of the Province of \Vest Bengal : Held, that the liability to pay rent was not "financial obliga-gation" contemplated by article 9 and the Government of West Bengal was liable under article 8(2)(a) of the abovesaid order to pay the rent which had accrued up to the 15th August, 194 7.

Province of 1'Vest Ben.gal v. Midnapnr Zemindari Go., Ltit. (54 O. W. N. 677), Sree Sree Iswar Madan Gopal Jia v. Province of West Bengal (54 0. W. N. 807) and The State of P.nnjab v. L. 111ohanlal Bhayana (A. I. R. 1951 Punj. 382) referred to. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 119 of 1951.

Appeal by special leave granted by the. Supreme Coutt of India by its. Order dated 14th December,

1950, from the Judgment and Decree dated the 9th

March, 195?, of the High Cour~ of Ju.dicature at Cal- 7.'he Stat:;,,! West cutta (Harries C. J. and BannerJee J.) m Appeal from Bengal Original Decree No. 162 of 1949 arising out of the v. Judgment and Decree dated the 4th August, 1949, of Shaikh the said High Court (Sinha J.) in its Ordinary Original Scrajuddin Civil Jurisdiction in Suit No. 1502 of 1948. Batley.

Batley. Das J.

S. M. ·Bose, Advocate-General of West Bengal, and

N. C. Chatterjee (B. Sen, with thein) for the appellant.

R. Choudkury. and B. Choudhury for the respond-

ent.

C. K. Daphtary, Solicitor-General for India (G. N. Joshi and Porus A. Mehta, with him) for the Union of India.

1953. November 24. The Judgment of the Court was delivered by

DAS J.-This is an appeal by special leave by the

State of West Bengal from the judgment and decree passed on the 9th March, 1950, by Division Bench of the Calcutta High Court affirming the judgment and decree pronounced by Sinha J. on the 4th August, 1949, in exercise of the ordinary original civil juris-diction of that court. The question for consideration in this appeal is whether on proper interpretation of articles 8 and 9 of the Indian Independence (Rights, Property and Liabilities) Order, 1947, the appellant can be held liable for payment of rent and taxes for peyiod priQr to the 15th August, 1947, in respect of premises which had been taken on lease by the un-divided Province of Bengal.The relevant facts are shortly these. By an inden-ture of lease dated the 22nd February, 1947, the res-pondent demised to the Governor of the undivided Province of Bengal the first, second and third floors of premises No. 73, Dharmatolla Street, in the town of Calcutta for term of three years commencing from the 1st day of February, 1947, yielding and paying unto the lessor therefor during the said term monthly rent of Rs. 1,800 only clear of all deductions by equal monthly payments on the 5th day of each and

1953 every month for the month immediately preceding [[-., ]][[IV ]]and also the sum of Rs. 150 per quarter towards pay-Bengal tat' tat' o, "' ment o occupier s s · ' are o mumc1pa taxes. . . 1 y t v. lease the lessee covenanted that he would, during the Shaikh said term, use the demised premises only for hostel Serajuddin for the students of the Campbell Medical School and Batley. shall not at any time during the said term use the Das J. demised premises or any part thereof for any other purpose whatsoever.• The lessee further agreed to pay the costs of and incidental to the lease. Oil the 15th August, 1947, the partition of India took place and, amongst other things, two new provinces came into existence, namely, West Bengal and East Bengal, in place of the old Province of Bengal. The Province of West Bengal formed part of the Dominion of India and is nqw the State of West Bengal in the Union of India while the Province of East Bengal became and is still part of the Dominion of Pakistan. The lndian Independence Act, 1947, by section9empower-ed the Governor-General, amongst other things, to make such provision as appeared to him to be neces-sary or expedient for dividing between the new pro-vinces to be constituted under that Act the powers, rights, properties, duties and liabilities of the provinces which under that Act were to cease to exist. In exer-cise of that power the Governor-General promulgated an Order called the Indian Independence (Rights, Property and Liabilities) Order, 1947, hereinafter referred to as the said Order, to deal with the powers, rights, property, duties and liabilities of the respective Governments of West Bengal and East Bengal. Arti-cle 8(2) of that Order, which is material for the pur-poses of this appeal, was in the following terms :-

Th S [[-., ]][[IV ]]• Bengal tat' tat' o,

Serajuddin Batley. Das J.

"Any contracts made on behalf of the Province of Bengal before the appointed day shall, as from that day-

. (a) if the contract is for purposes which as from that day are exclusively purposes of the Province of West Bengal, be deemed to have been made on behalf of that ·Province instead of the Province of Bengal; aqd

--.._ • -

(b) in any other case be deemed to have been · l9S3 made on be~alf of the Province of East Bengal instead The State~! West of the Provmce of Bengal; Bengal and all rights and liabilities which have accrued or v. may accrue under any such contract shall, to the Shaikh extent to which they would have been rights or liabi-Serajuddin Batley. Jities of the Province of Bengal, be rights or liabilities of the Province of West Bengal or the Province of paaJ. East Bengal, as the case may be.'?

Clause (6) of article 8 provided that the provisions of that article would have effect subject to the provi-sions of article 9 of that Order. The relevant portion of article 9 was a.s follows :

"9. All liabilities in respect of such loans, guar-

antee and other financial obligations of the Governor-Genera] in Council or of Province as are outstanding immediately before the appointed day shall as from that day--

(a) ..................................................... .

(b) in the case of liabilities of the Province of Bengal, be liabilities of the Province of East Bengal."

On the 8th May, 1948, the respondent filed suit in the Calcutta High Court against the appellant claim-ing Rs. 21,600 as arrears of rent at Rs. 1,800 per month from February, 1947, to January, 1948, Rs. 600 as occupier's share of municipal tax for the same period and Rs. 523-9-3 being the costs of and inciden· tal to the lease, aggregating to Rs. 22, 723-9-3. During the pendency of this suit the appellant paid Rs. 9,250 being the arrears of rent and taxes from the 15th August, 1947, but denied liability for the arrears of rent or taxes for any period prior to that date or for the costs of the ]ease:

The case< was heard by Sinha J., who by his judg-ment dated the 10th August, 1947, held, amongst other things, that the lease was entered into for purposes which as from the 15th August, 1947, were exclusively purposes of the Province of West Bengal and that under article 8(2)(a) of the said Order the appellant was clea,rly liable for the rents which had accrued previous to the appointeq day, that is to sa;v, the l5th

1953 August, 1947, and decreed the suit for Rs. 13,473-9-3 The Stat;;,fWm with costs and interest on judgment at 6 per cent. Brnyal The Province of West Bengal preferred an appeal from v. that judgment but Division Bench of the said High Shaikh Court (Harries C. J. and Banerjee J.) affirmed the Serajuddin decree and dismissed the appeal with costs. The State Batley. of West Bengal which took the place of the Province Das J. of West Bengal applied for leave to appeal but that application was dismissed. The State of West Bengal thereafter applied for and obtained special leave to appeal from this court and the appeal has now come up before us for final disposal.

The learned Advocate-General of West Bengal appearing in support of this appeal fairly and frankly conceded that in the absence of anything else this case would be wholly covered by article 8(2)(a) but contended that by virtue of article 8(6) that article was to have effect subject to the provisions of arti-cle 9. In the circumstances the question whether the contract was for purposes which as from the appoint-ed da,y were exclusively purposes of the Province of West Bengal and whether article 8(2) made any dis-tinction between liabilities which had accrued or which might accrue need not be considered.

The argument before us has been confined only to the interpretation of article 9. Learned Advocate-General contends that the liability to pay rent under the lease comes within the expression " other financial obligations" to be found in that article. According to him all obligations to pa.y money under contract whether by reason of covenant to pay money or by way of damages . for breach of contract may be pro-perly described as "financial obligations." It is no doubt true an obligation to pay monex under contract or for breach thereof is in sense " financial obligation " but the question is not what may popu-larly be described as "financial obligation" but what is the meaning of the expression "other financial obli-gations" in the context in which it has been used. To accept the argument of the learned Advocate-General wHI be to rob article 8 of practically the whole of it~

content excepting claims for injunction or specific per-formance of contract or the like. Such, we appre-hend, could not have been the intention of the framers of that article. This difficulty does not arise if the expression be construed ejusdem generis, for so con-strued it implies an obligation in the nature of an obligation in respect of loans and guarantees incurred or undertaken by the State as held by Harries 0. J. in Province of West Bengal v. Mi napur Zemindary Co., Ltd.(1), which has been followed by Ohunder J. in Sree Sree lswar Madan Gopal Jiu v. Province of West Bengal([2]), and by Kapur J. in The State of Punjab v. L. Mohan Lal Bhayana ([3]). The phrase "loans, guarantees and other financial obligations" occurred in section 178 in Part VII of the Government ·of India Act, 1935, and there cannot be any doubt that those expressions used in that section did not refer to all and sundry pecuniary obligations of the State arising out of contracts of every description. The loans and guarantees there referred to meant, it would seem, the special kinds of contracts relating to the State loans and State guarantees. In that context "financial obligations " would mean obligations arising out of arrangement or .agreements relating to State finance such as distribution of revenue, the obligation to grant financial assistance by the Union to any State or the obligation of State to make contributions and the like. It is, however, not necessary or desirable to attempt an exhaustive definition of the expression · "financial obligations. i> The court will have to con. sider in each case whether particular obligation which may be the subject-matter of discussion falls within the expression "financial obligations" within the 'meaning of article 9. Whatever liabilities may or may not come within that expression we are clearly of opinion, in agreement with the High Court, that the liability to pay rent under lease certainly does not come within that expression.

Such, we appre- Th St_t_if w

est

Shaikh

Serajuddin Batley.

(1) 54.C. W. N. 677; 85 C. L. J. 202; A. I. R.1950 Cal.159,

(:!) 54 C. W. N. 807 ..

(3) A. I. R. 1951 Punjab 3~2,

19S3 _ The result, therefore, is that we affirm the decision The state af West of the High Court and dismiss this appeal with costs.

Bengal v. Shaikh 8erajuddin Batley.

Appeal dismissed.

Agent for the appellant: P. K. Bose. Agent for the respondent: A. N. Mitter. Agent for ~he intervener: G. H. Ra,jadhyak8ha.

RA.TA KULKARNI AND OTHERS

Nov. 24,

THE STATE OF BOMBAY.

[PATANJALI SASTRI C.J., MEHR CHAND MAHAJAN, S.R. DAs, VIVIAN BosE and GHULAM HASAN JJ.]

Constitution of India, arts. 19(1)(a.) and (c}-Bombay Indu;-trial Relations Act, 1946, ss. 3(32), 12, 13-Industrial Disputes (Appellate Tribunal) Act, 1950, ss. 24, 27-Strike pending appeal-Illega,lity-Olassification of 'Union as "representative" and ''qual?:. fled'' according to percentage of inernbership-Infringenient of fu.nda. rnenta,l right to frcedoni of speech and to forni a,ssociations.

strike during the pendency of an appeal would be an illegal strike under ss. 24 and 25 of the Industrial Disputes (Appellate Tribunal) Act, 1950, even though the appeal io not valid or competent one.

The Bombay Industrial Relations Act, 1946, provided that union may be registered as a" representative union" if it had membership of not less than 15 per cent. of the total number of employees employed in any industry in any local area and if union had membership of less than rn per cent and not less than 5 per cent. it can be registered only as 'qualified union'' :

Held, that the above provisions did not infringe the fundamen-. tal right of the workers to freedom of speech and expression and to • form associations or unions ·mder article 19(1)(a) and (c) of the Constitution. The classification of unions as" representative" and "qualified" according to the percentage of membership and giving the right to unions with membership of not less than 15 per cent. alone to represent the workers was reason~ble· classification and did not infringe the rule of equality before the law.

CRIMINAL APPELLATE JURISDICTION: Cases Nos. 87, 88 and 89 of 1951. Appeals under article 132(1) of ~he Constitution of India from the Judgment and Order d1J;ted 8th January, 1951, of the High Court of