•

•

S.C.R. SUPREME COURT REPORTS 817

allow the licensing authority to make any reduction he

likes. On the whole we are of the opinion that clauses (7)

and

(8) of the Control

Order do not impose unreasonable

restrictions upon the freedom of trade enjoyed

by the

petitioners and consequently the declaration

of the

16th of Juiy,

1953, cannot be held to be invalid. The

result is that, in our opinion, clause 4(3) of the Control

Order as well as tbe cancellation of the petitioners'

licence should

be held to be invalid and a writ in the

nature

of mandamus would issue against the

respond­

ents opposite parties preventing them from enforcing

the cancellation order. The rest

of the prayers of the

petitioners arc disallowed.

\Ve make no order as

to costs.

Petition partly allot11ed.

Agent for the petitioners : Ga11pat Rai.

Agent for the respondents : C. P. Lal.

CHA TTURBHUJ VITHALDAS JASANI

v.

MORESHW AR P ARASHRAM AND OTHERS.

[MuKHERJEA, V1v1"" BosE and BHAGWATI JJ. /

Represellfation of t!1c People Act (XLlll of 1951), s. 7(d)-A

firm entering into co11trac1s with Central Govern1ne11t for supply of

goods-A candidate seeking election for Parlianient, a partner of the

said firm on the crucial dates-Disqualificatio11-Co11stitution of

India, art. 299(1)-Indian Contract Act (IX of 1872) s. 230(3)­

Contract ivith Gover111nent not in proper forn1-TVhether void­

Ratification-Contract for supply of goods-Subsists till fully dis­

charged by both sides-And payn1ent. 1nade-Person of Scheduled

Caste Mahar convertt'd to 1ahanubhava Pa11th-FVhether convert..,·

caste statu.i altered.

A contract for the supply of goods does not tenninate \Vhcn

the goods arc supplied, it continues into being till pay1ncnt is

made

and the contract

is fully discharged by performance on both

sides.

O'Carroll v. Hastingt ([1905] 2 LR. 590) and Satyendrakumal'

})as v. Chairn1an of the Municipal Com1nissioners of Dacca (I.L.R .

58 Cal. 180) relieJ upon.

The firm Moolji Sicka and Company of

was a partner had _ entered into contracts

which the candidate

\Vith the Central

1954

.. i\.ftssrs. Dwarka

Prasad Laxmi

Narain

v.

The State of

Uttw Pradesh and

Two Others.

Mukhtrjea J.

1954

February 15.

1954

Chatturbhuj

Vithaldas

Jasani

v.

Moreshwar

Par ashram

and Others.

818 SUPREME COURT REPORTS [1954]

(;overnn1ent for the supply of goods. The contracts subsisted on

the crucial dates, Nove1nber 15, 1951, and February 14, 1952.

Novernber 15, 1951, \Vas the last date for putting in nominations.

an<l February 14, 1952, \Vas the date on which results were

declared :

Held, that the candidate had both a share and an interest in

the contracts for the supply of goods to th~ appropriate Govern­

n1ent on

the crucial dates and was thus disqualified for being

chosen as a member of

Parliament by virtue of the disqualification

set out ins. 7(d) of the Representation of the People Act (XLIII

of 1951).

Held further, that the contention that the contracts in ques­

tion

\Vere void because the l}nion Government could not be .sued

by reason of art. 299(1) of the Constitution as the contracts were

not expressed to be nlade by the President was without force be­

cause this was the type of case to which s. 230(3) of the Indian

Contract Act would apply.

\.'hen a Government officer acts in excess of authority Govern­

ment is bound if it ratified the excess.

T/1e Collector of J.\1asulipatam v. Cavaly Venkata Narrainapah

(8 M.l.A. 519) relied upon.

A member of

Castes continues

conversion to the

version imports

certain ideological

status.

the Mahar caste \vhich is one of the Scheduled

to be a member of the Mahar caste despite his

tenet.s of the ~IahanubhaYa Panth as such con-

little beyond

an intellectual acceptance of

tenets and does not alter the convert's caste

Abraham v. A />raham (9 M.I.A. 199) relied upon.

C1v1L APPELLATE JURISDICTION : Civil Appeal No.

155 of 1953.

Appeal by special leave from the Judgment and

Order dated the 15th July, 1953, of the Election Tri­

bunal, Nagpur, in Election Petition No. 3 of 1952.

B. Sen and T· P. Naik for the appellant.

Veda Vyas (S. K. Kapur with him) for respondent

No.

1.

1954. February 15. The Judgment of

th<' Court

was defo ere.cl by

BosE J.-This is an appeal against a decision of

the Nagpur Election Tribunal. The contest before •

the tribunal was about two seats rn the Bhandara

Parliamentary Constimency. The elections were held

on

five

days in December, 1951, and January, 1952.

•

•

•

S.C.R. SUPREME COURT REPORTS 819

Thirteen candidates filed nomination papers among

them the petitioner. Of these, six contested the seat

reserved for the Scheduled

Castes.

One of these was

Gangaram Thaware who has since died.

The Scheduled Caste in question is the Mahar caste.

Objection was taken to Thaware's nomination for

the reserved seat on the ground that

he was not a

Mahar. It

is admitted that he was born a Mahar,

but later in life he joined

the Mahanubhava Pantli.

This, according to the appellant, is a sect which does

not believe in caste, and alternativdv that it forms

a separate caste in itself. The contention was that

when Gangaram Thaware joined the Panth he

ceased

to be a member of the Mahar caste. The objection

succeeded and his nomination

was rejected.

The nomination

of another Scheduled

Caste camli­

.datc

was also rejected and five others were withdrawn

before the election, among them was the present petitioner. That left six candidates of whom three

were eligible for the reserved seat.

The two who were elected were Tularam

Sakhare,

for the Scheduled Caste seat, and Chaturbhuj J asani,

for the general seat. Jasani's election

was challenged -0n the ground that he was subject to the disqualifica­

tions

set out in section 7(d) of the Representation of

the People Act (Act XLIII of 1951) as he

\Yas interest­

ed in a contract for the supply of goods to the

Central Government.

The Election Tribunal held that the rejection

of

Gangaram Thaware's nomination was improper as

he

continued to be a member of the Mahar caste despite

his conversion to the tenets of the Mahanubhava

Panth. It also held that Chaturbhuj J asani had a

<:ontract with the Central Government, so he was

disqualified. Accordingly it set aside the whole

election.

We will deal with Chaturbhuj Jasani's election

first. Section 7 ( d) is in these terms:

"A person shall be dissqualified for being chosen

as, and for being, .a member etc.

* * * *

1954

Chatturhhuj

Vithaldas

Jasani

v.

Moreshwar

Parashram

and Others.

Bose].

1954

Chattwbhuj

Vithaldas

Jasani

v.

Moreshwar

Parashram

and Ot/urs.

BoseJ.

820 SUPREME COURT REPORTS [1954

( d) if. .. .. . hy himself ...... he has any share or

interest in a contract for the supply of goods

to ..... .

the appropriate

Government."

Chaturbhuj Jasani was, and still is, a partner in the

firm

of Moolji

Sicka & Company, and it is said that

at all material times the firm had a contract for the

supply of

bidis to the Government for the troops.

Moolji

Sicka & Company is a firm of bidi manu­

facturers. The Central Government was interested

in stocking

and purchasing bidis for sale to its troops

throngh its canteens. Accordingly, it placed two of

the brands of

bidis manufactured by this firm on its

approved list and

entered into an arrangement with

the firm under which the firm was to sell, and the

Government

was to buy from the firm, from time to

time, these two brands of bidis. It was argued that

this amounted to a contract for the supply of goods

within the meaning

of the section. It was said that

the contract

was embodied in four letters.

We do not intend

to analyse

the~e letters in detail

here. It

is enough to say that in our opinion no

binding engagement

can be spelt out of them except

to this extent: Moolji

Sicka & Company undertook

to

sell to the canteen contractors only through the

Canteen

Stores and not direct and undertook to pay

a commission on all sales. This, in our opinion, consti­

tuted a continuing arrangement under which the

Canteen Stores,

i.e., the Government, would be

entitled to the commission on all orders placed and

accepted in accordance with the arrangement; and

in

fact the Canteen Stores did obtain a sum of Rs.

7,500

in satisfaction of a claim of this kind. This money

was paid long before the dates which are crucial here

but the settlcmcnr illustrates that there was an

arrangement

of that nature and that it was a con­

tmumg one.

In our opinion, it continued in being

even after that and the

mere fact that there was no

occasion for any claim subsequent to the settlement •

does not indicate that it was no longer alive. But

except for this, the letters merely set out the terms

on which the parties were ready to do business with

S.C.R. SUPREME COURT REPORTS 821

each other if and when orders were placed and execut­

ed. As soon as an order was placed and accepted a

contract arose. It

is true this contract would be

governed bv the terms set out in the letters but until

an order

~as placed and accepted there was no con­

tract. Also, each separate order and acceptance

constituted a different and distinct contract:

see Rose and Fran!( Co. v. J. R. Crompton & Bros. Ltd.(

1

).

The crucial dates with which we are concerned are

15th November, 1951, the last date for putting in the

nominations, and

14th February, 1952, the date on

which the results were declared. The section

runs-

"A person shall be disqualified for being chosen

as ...... n

The words which follow, "and for being'', need not

he considered as it is enough for our purposes to use

only the former.

Now the words

of the section are

"shall be dis­

qualified for being chosen." The choice is made by a

series of steps starting with the nomination and

ending with the announcement

of the election. lt

follows that if a disqualification attaches to a

candi­

date at any one of these stages he cannot be chosen.

· The disqmlificatwn alleged in this case is that

Chaturbhuj Jasani had an interest

in a contract, ur

a

series

0£

contracts, for the supply of goods to the

Central Government. He hail this interest because

the contracts were made with Moolji Sicka & Com­

pany, a firm of which Jasani is one of the partners.

The fact of partnership

is admitted but the other

facts are denied.

\Ve have therefore to see whether

any contract for the supply of goods to Government

by Moolji Sicka & Company existed at any time on

or between the relevant dates.

Exhibit C is a tabular statement which sets out the

dealings between the parties during certain months.

It

is accepted as correct by both sides. The

follow­

ing extracts from this statement show that Moolji

Sicka

&

Company had an interest in a series of

contracts for the

sale of bidis to the Canteen Stores

at and between the relevant dates .

.

(1) [1925] A.C. 445.

1954

C/iatturbh11i

VithaldaS

Jasani

v.

Mareshwar

LParashram

artd Others.

~'.-.. :­

Bose].

1954

Chatturbhuj

Vilhaldas

Jasani

v.

Moreshwar

Parashram

and Others.

Bose].

822 SUPREME COURT REPORTS [1954]

Date of ord<:>r Date of invoice Price of Date of

by and goods pay-

Canteen Stores Despatch supplied me-nt

---..

8-10-1951 18-10-1951 Rs. 1 ,684-13-9 19-12-1951

8-10-1951 19-10-1951 3,373-9-3 d.:;

17-8-1951 26-10-1951 I 2,662-8-0 do

12-9-1951 26-10-1951 I l,426-14-6 do

I 1-10-1951 26-10-1951 8,411-14-0 do

21-10-1951 30-11-1951 IO, 125-2-9 do

9-8-1951 29-8-1951 25,812-12-0 24-12-1951

8-10-1951 18-10-195 I 4,793-4-9 do

14-n-1951 22-11-1951 l ,887-9-9 5-1-1952

17-10-1951 8-J I-I 95 l 16,554-2-0 22-1-1952

12-11-1951 20-l 1-1951 4,205-15-0 do

13-12-1951 l0-1-1952 13,97,079-7-9 12-2-1952

14-1-1952 22-1-1952 1,691-11-9 do

21-12-1951 l0-1-1952 16,983-8-0 18-2-1952

12-II-1951 22-n-1951 8,411-14-0 13-3-1952

9-1-1952 16-1-1952 5,888-4-9 do

23-1-1952 28-1-1952 8,411-14-0 20-3-1 <)52

This statew.ent reveals that various contracts aggre­

gating

Rs.

15,39,345-6-0 less some small sums for

railway freight, were outstanding at one time or

another between the two crucial dates and that pay­

ments in discharge of these liabilities were made at

various dates between 15th November, 1951, and 20th

March, 1952.

It also shows that orders were placed and accepted

for goods priced at

Rs. 84,659-14-3 before 15th

November,

1951, and that payment was not made till

after that date. Therefore, on 15th November,

1951,

goods worth Rs. 84,659-14-3 had still to be paid for.

Then between 15th November,

1951, and 14th

February, 1952, further orders for goods

v:ilued at

Rs. 39,695-8-9 were placed and accepted and they

were not paid for till after 14th February,

1952.

It was argued that there is nothing to show that the

goods were not supplied before 15th November,

1951,

and before 14th February, 1952. It was said on behalf

of the appellant that these are the only dates which

are crucial,

so if Moolji

Sicka & Company had fully

S.C.R. SUPREME COURT REPORTS 823

executed their part of the contracts before the two

crucial dates the disqualification would not apply.

That raises these questions: (1) Does a person who

has fully executed

his part of a contract continue to

have an interest in it till the goods are paid for?; and

(2) were these contracts fully executed

so far as Moolji

Sicka & Company's part was concerned? The parties

are not agreed about this, so it will now be necessary

to examine their letters in detail to determine the

terms of the various contracts.

The correspondence

discloses that the Canteen

Stores and Moolij Sicka & Company dealt with each

.,. -Other from time to time under various arrangements

which ,!hey called "systems".

The earliest letter we have about the transactions

between these parties

is one dated

30th March, 1951.

It shows that the "system" which they called the

"Direct Supply System" was in use at that time The

.details of the "system" are set out in an order dated

17th April,

1951. Under it Moolji

Sicka & Company

had

to send supplies of bidis direct to the Canteen Stores contractors as and when ordered. The value of

the goods so supplied was to be recovered from the

.contractors direct and the Canteen ·Stores were to he

informed of the sales and were to be paid a certain

.comm1ss1on.

This led to some friction and in their letter of 30th

March. 1951,. the Canteen Stores complain that

information about

some of the sales to the contractors

had been suppressed with the result that the Canteen Stores lost their c.ommission. Moolji Sicka & Com­

pany replied to this on 24th April,

1951, and suggested

a slight change in the system, namely that all orders

for the goods should in future

be placed through the

Canteen Stores and that there should

be no dealings

with the contractors direct except to supply them

with the goods ordered

by the Canteen stores; then,

they

said, there would be no complaint about their

having been kept in the dark. This appears

to have been agreed to because such of the subsequent orders

as arc on record were placed

by the Canteen Stores.

1954

Chatturhhuj

Vithaldas

Jasani.

v.

Moreshwar

Parashram

and Others.

Bose J.

1954

Chatturhhuj

Vithaldas

:Ja.1an1

v.

More.Jltwcu

Parashram

and Other.J".

Bose].

824 SUPREME COURT REPORTS [19541

The or<ler date<l 17th April, 1951, to which we have

referred above is a sample.

This was considered unsatisfactory and it was felt

that a change was called for. Moolji Sicka & Com­

pany's letter of 24th Ap1il, 1951, shows that their

complaint was that the Canteen Stores did not keep a

sufficient stock of

bidis on hand.

They said-

"W e feel that you can stock more of our bidis.

And that will mean an added profit to you; since the

rebate you get on supplies made under the Direct

Supply System 1s Rs. 4 only, whereas on supplies

made to you we have

now offered

a much higher

rebate

.............. We

have therefore to request you to

kindly stock more of our bidis."

In view of this, two representatives of Moolji Sicka

& Company, met the Chairman of the Board of

Administration, who was in charge of the Canteen

Stores Department, on 10th July, 1951. They reached

certain tentative conclusions which were reduced to

writing

by the Canteen Stores on 11th July, 1951.

Their letter of that date shows that the Canteen Stores

proposed to abolish the Direct Supply System in the

near future but

so far as Moolji Sicka & Company

were concerned they said that the system could be

abolished at once

("forthwith" is the word used)

provided Moolji Sicka & Company would agree to

supply

bidis for the Bombay, Calcutta and Delhi

Depots of the Canteen Stores under a new system

which they called the

"Consignment System''. Under

this the Canteen Stores were to pay as they sold. But

the new system was intended only for the Bombay

Calcutta and Delhi Depots of the Canteen Stores.

The

letter goes on to say that for the Pathankot and Sri­

nagar Depots the supplies would have to be made

on

the

"Outright Purchase Basis". These proposals

were embodied under the heading "Future Business

Relations". Then there was a provision for what was

called the "Transition Period". That said that

"Until stoch could be placed in our depots, it

was agreed that you would supply your

bidis direct against. our orders and on such supplies you would

allow

us rebate as

at present."

S.C.R. SUPREME COURT REPORTS 825

These proposals were sent to Moolji Sicka & Com­

pau y for confirmation.

It will

be seen that the letter makes four

proposals :

(1) That

so far as Moolji Sicka & Company were

concerned,

"the Direct Supply System" should be

terminated at once though, so far as other manu­

facturers were concerned, it should continue in force

for some time longer;

(2) That in

its place the Calcutta, Bombay and

Delhi Depots were to

be supplied under a new system

called the

"Consignment System";

(3) That the Pathankot and Srinagar Depots were

to

be supplied under another new system called the "Outright Purchase System";

( 4) That during the "transition period" the "Direct

Supply System" was to continue in operation "as at

present" even with Moolji Sicka and Company.

Moolji Sicka

& Company replied on 16th July,

1951, saying that they were prepared to accept these

terms prqvided the Canteen Stores confirmed

certain

modifications which Moolji Sicka & Company pro­

posed. They were as follows:

(1) Regarding the "Transition Period" they said­

"W e arc pleased to note that vou will soon be

abolishing the Direct Supply System. But it should be

applied to all suppliers at the same time. Till then we

should b('. allowed to supply any orders received from

the Canteen Contractors.

You should inform us of the

date

on which Direct

Supply System will be dis­

continued."

(2) Regarding the new proposals under the heading

"Future Business Relations" Moolji Sicka &

Company said-

"Goods sent to your depots on consignment basis

must be either returned to us or paid for fully within

three months

of the date of supply. We understand

that the

system of supplying goods on

consign­

ment basis will be discontint~d in about six months'

time."

1951

Chatturbhuj

Vithaldas

Jasa'!li

v.

Moreshwar

Parashram

and LOtJiers.

Bose J.

Chatturblud

Vithaldas

Jasani

v.

Mareshwar

Parashram

and Others.

Bose .7·

826 SUPREME COURT REPORTS [1954]

(3) They said-

" And for this purpose we have agreed to offer you

Rs. 7,500 in full and final settlement of all your claims

to date

and upon the understanding of your

acceptance

of the terms for future business."

They concluded-

"Upon rece1vmg your confirmation we shall

instruct our Bombay

office to send you the cheque for

the amount stated

above."

The Rs. 7,500 was what the Canteen Stores claimed

from Moolji Sicka & Company as compensation for

breach of the agreement under which Moolji Sicka &

Company had agreed not to sell to the Canteen

Contractors without paying the Canteen Stores a

comm1ss10n. Neither side was able to produce exact

figures but this

was the estimate made by the Canteen Stores of the loss suffered by them by reason of that

breach.

It will

be seen that the proposal about the

"Consign­

ment Svstem" which the Canteen Stores made was

that they would pay Moolji Sicka & Company only

when they sold the stocks with which Moolji Sicka &

Company were to supply them for stocking their depots

at Calcutta, Bombay and Delhi. Moo! ji Sicka & Com­

pany were not satisfied with this and said that the

Canteen Stores must either return or pay for all

stocks supplied, within three months from the date of

supply.

The Canteen Stores replied on 19th July, 1951, as

follows:

( l) They accepted

suggestion that when

abolished the abolition

of

bidis.

Moolji

Sicka &

the Direct Supply

would apply to

Company's

System was

all suppliers

(2)

As regards the

"Consignment Account System"

they did not turn down the proposals but observed

that they were thinking of doing away

witl1 that too in

favour of the

"Outright Purchase System" and

warned Moolji Sicka & Company that in view of that

it

might not be necessary to place any of Moolji

Sicka

& Company's stocks in their depots.

•

S.C.R. SUPREME COURT REPORTS 827

(3) They wanted a six months' guarantee period in

place

of three months.

The letter concludes-"Although under the system of provisioning

adopted

by us, and as explained to you during our

discussions,

it may not be that we shall at any time

have any stocks surplus to our requirements or stocks

which have not been disposed of within the guarantee

period, but should there

be any solitary occasions will

you please confirm that you will replace such stock with

fresh stock without any

cost to us? We await

yoar

agreement by return."

They also said, "We now await your cheque for

Rs. 7,500."

Moolji Sicka & Company replied on 26th July, 1951,

and commenced by saying-

"W e agree to all you have said in page one of

your letter under reply."

Regarding. the guarantee they said they could not

agree

to six months but would agree to three provided

the guarantee

was limited to goods found to be

defective because of faults in

manufacture. They

concluded-

"We have also to pay

letter, dated 16th July,

Canteen Stores would

made.

you Rs.

7,500 as per our

1951," and asked how the

like the payment

to be

The Canteen

Stores replied on 31st July, 1951, and

explained what they meant

by the

"guarantee period".

Bidis deteriorate by keeping, so the · idea was to have

a system under which they could be returned within

six months to prevent their deterioration. They

explain that this

is in the interests of the manufacturer

because (

1) it will not bring their brands into disrepute,

for that would

be the inevitable result if stale bidis

which had deteriorated were sold in the canteens and

(2)

if the period is made too short, then

"the goods will not stay in our depots and in the

stalls

of our canteens and contractors long enough to

sell and

hence our depots will always be anxious to

1954

C!iatturbhuj

Vithaldas

Jasani

v.

Moreshwa"

Parashram

ond Others.

Bose].

i95+

Chatturbhuj

Vithaldas

JrLfani

v.

Moteshwar

Parashram

and Others.

Bose J.

828 SUPREME COURT REPORTS [1954]

return these stocks. The result will be obvious. Your

sales will be lower."

They continue-

"W e therefore consider that the period of six

months should be the least before the expiry of which

goods may

be taken back by you and replaced . ........ .

The period

of three months within which you expect

us to return your stocks, should we find them not

moving.

will be too short."

Tky conclude by saying that they hope Moolji

Sicka & Company will agree to the six months.

Now it will

be seen that

all this correspondence

related

to the proposals about the

"Consignment

System" which were first mooted on 11th July, 1951.

Moolji Sicka & Company complained on 24th April

1951, that the Canteen Stores were not keeping large

enough stocks of their bidis and they asked the Canteen

Stores to stop the Direct Supply System and purchase

stocks direct.

The

Canteen Stores were naturally

reluctant to keep large stocks on hand because bidis

deteriorate and become unsaleable

in course of time.

Therefore they proposed the

"pay as we sell" system,

that

is, they would keep stocks of bidis and pay for

whatever they sold. But the problem of unsold stocks

deteriorating still remained. \Vho

was to be

res­

ponsible? The obvious answer was that the manu­

facturers should take back the unsold stocks before

they were too far gone and in their place send fresh

consignments for sale on the "pay as we sell" basis.

We say "obvious" because the manufacturers could

use the stale tobacco by re-curing and blending it, or

could

use it for other purposes provided it was not toQ

·

far gone. The proposal therefore was that the Canteen

Stores were to keep stocks of Moolji Sicka & Com­

pany's bidis in their depots and canteens, pay for what

they sold and return all unsold stocks within

six

months. Moolji Sicka &

Company were then to replace

them with fresh stocks which would

he paid for when

sold. This

was agree<

I to in the· main but the point at

which they were at issue

was the six months. Moolji Sicka & Company proposed three months w hilc the

•

"

:S.C.R. SUPREME COURT REPORTS 829

Canteen Stores wanted six months. We think the

argument

used in the letter of 31st July, 1951, that "the result will be obvious. Your sales will be lower'"

.can only have reference to an arrangement of this

kind, otherwise

no question of the sales being lower

could arise. In the

case of an outright sale, the sale

would be complete when the order was executed, and

·except for bidis found to be defective due to manufacture.

Moolji

Sicka & Company would have no further con­

<:ern with them. The sentences "the goods may be

taken back by you and replaced" and "should w~

find them not moving" can only refer to these p: u­

posals about the "Consignment System". In any

<ease, it certainly includes this system.

Moolji Sicka & Company's reply is dated 9th August,

1951. They say-

"We are in receipt of your letter No. 7B/29/-17/

1299, dated 31st July, 1951, and are pleased to extend

the guarantee period from three. to six months. \Ve

are sure this will now enable you to keep adequate

·stocks of our bidis. Awaiting your esteemed orders."

This is an acceptance of the interpretation of the

"guarantee period" as given by the Canteen Stores in

their letter of 31st July, 1951. The words "now"

and "adequate" relate to the dispme which started

on 24th April, 1951, when Moolji Sicka & Company

<:mnplained that the Canteen Stores were not keeping

adequate

stocks of their bidis in their depots. The

subsequent correspondence

was aimed at finding out

ways

and means to meet this objection and at the

same time

satisfy both sides. It all ended by Moolii

Sicka

&

Company accepting the terms set out in the

ktter of

31st July, 1951. We are accordingly of

opinion that Moolji

Sicka & Company accepted the

"Consigmnent System" on 9th August, 1951. That

imported a "pay as we sell" arrangement with an

obligation to take back stocks unsold within six

months and replace them with fresh stock which

would

he paid for when sold. In the

"transition

period" the Direct Supply System was also to continue.

That meant that there would be two systems in force

for a time in certain depots: the "Consignment

1954

Chatturbhuj

Vithaldas

Jamni

v.

Moreshwar

Parashram

and Others.

Bose].

1954

Chatturbhuj

Vithaldas

Jasani

v.

Moreshwar

Parashram

and Others.

Bose J.

830 SUPREME COURT REPORTS [19541

System" regarding stocks ordered for the stocking up­

of the Calcutta, Bombay and Delhi depots of the

Canteen Stores and the "Direct Supply System" till

such time

as the depots were stocked. The third

system of

"Outright Purchase" was limited for the

time being

to the Pathankot and Srinagar depots.

Both the

"Direct Supply" and the "Consignment"

systems were abolished together on 1st November,

1951 (see the Canteen Stores' letter dated 24th

November, 1951). But the obligation to take back

unsold stocks within the

six months' period continued

to attach to all contracts for consignment to the Cal­

cutta, Bombay and Delhi depots made between 9th

August,

1951, and 31st October, 1951. The tabular

statement shows that the following contracts for con­

signment to one or other of these three depots were

made during that period. The date of the invoice

is

the date of the execution of the order and thus of the

acceptance of the proposal contained in the order.

Date of Invoice Depot.

Price of goods Date of

& DLspatch. supplid. payment

1-l 0-195 l Bombay. Rs. 5,056-2-0 15-11-1951

13-10-1951 do 13,536-4-6 do

18-10-1951 Delhi I ,684-13-9 19-12-1951

19-10-1951 Calcutta 3,373-9-3 do

18-10-1951 Bombay 4,793-4-9 24-12-1951

The value of these orders comes to Rs. 28,444-2-3.

The obligations under these sc veral contracts con­

tinl!ed from !st April, 1952 to 18th April, 1952.

It was argued that assuming that to be the case,

then there were no longer any contracts for the

"supply of goods" in existence but only an obliga­

tion arising under the guarantee clause. We are un­

able to accept such a narrow construction. This term

of the contract, whatever the parties may have

chosen

to call it, was a term in a contract for the supply

of goods. When a contract consists of a number of

terms and conditions, each condition does not form

a separate contract but

is an item in the one

·c"P.tract

of which it is a part. The consideration for ~~ch

•

S.C.R. SUPREME COURT REPORTS 831

condition in a case like this is the consideration for

the contract taken

as a whole. It is not split up into

several

consider:,tions apportioned between each term

separately.

But quite apart from that, the obliga­

tion, even under this term,

was to supply fresh stocks

for

these three depots in exchange for the stocks

which were returned and

so even when regarded

from

that narrow angle it would be a contract for

the supply of goods. It is true they are replacements

but a contract to replace goods

is still one for the

supply of the goods which are sent

as replacements.

But even if

all that be disregarded and it be

assum­

ed that Moolii Sicka & Company had fully performed

their part of the contract

by placing the goods on

rails before 15th November,

1951, we are of opinion

that the contracts were not at an end until the

vendors were

paid and the contracts were fully dis­

charged. The words of the sections are "if .... he has

any share or int.-rest in a contract for the supply of

goods to ...... the appropriate Government." There

can

be no doubt that these various transactions were

contracts and there can equally

be no doubt that

they were contracts for the supply of the goods.

Whether they were contracts for the supply

of

goods to the Government is a matter which we shall

deal with presently. But

we have no doubt that they

were contracts for the supply of goods. The question

then

is, does a contract for the supply of goods

terminate when the

goods are supplied or does it con­

tinue in being till

p~yment is made and the ~ontract

is fully discharged by performance on both sides? We

are of opinion that it continues in being till it

is fully

discharged

by performance on both sides.

It was contended, on the strength of certain observa­

tions in

some English cases, that the moment a

contract

is fully executed on one side and all that

remains

is to receive payment from the other, then

the contract terminates and a new relationship

of

debtor and creditor takes its place. With the ut­

most respect

. we are unable to agree. There is

always a possibility of the liability being disputed

before actual payment is made and the vendor may

2-96

S. C. India/59

19M

C!.allurb'iuj

Vlt a/dos

J .. sani

, ..

Mf)rtS'.1.Q(ll

Paras!JfanJ

ind' Ot.i.trS·

Bo" J'

1954

Chatturb '1lfi

Vit .aldas

Jw.ani

v.

Mares'.war

Ptiias ,ram

and Ot,,ns.

f!ose J~

'

832 SUPREME COURT REPORTS [ 195~ J

have to bring an action to establish his claim to pay­

ment. The existence of the debt depends on the con­

tract and cannot

be established without showing that

payment was a term

of the contract. It is true the

contractor might abandon the contract and sue on

quantum

mem1t but if the other side contested and

relied on the terms

of the contract, the decision

would have to rest on that

basis. In any case, as we

are not bound by the dicta and authority of those cases,

even assuming they go that far, we prefer to hold that

a contract continues in being till it

is fully discharged

by both sides: see the observations of Gibson J. in

O'Carroll v. Hastings('). To use the language of

O'Brien L.C.J. in that case at page 599, these con­

tracts have not been "merged, abandoned, rescinded,

extinguished or satisfied; and if any demur was made

as to payment before payment was actually made, he

could have sued upon the contract specially; or if

he sued for work done at the request of the defend­

ants the contract would have been a part of his

necessary

proofs." We agree with the learned Lord

Chief Justice in thinking that "it is far-fetched to

contend that a man

is not concerned in the contract or

security

by which he can enforce

payment." The

same view was taken by Costello J. in an Indian

case in Satyendral(umar Das v. Chairman of the Muni­

cipal Commissioners of Dacca(').

Counsel for the appellant relied strongly on certain

English

cases. They were all examined and

dis­

tinguished in the above decisions. They either turned

on special facts or on the words

of

a statute which

are not the same

as ours. The leading case appears to

be Royse v. Birley('). But the decision turned on the

language of the English statute which the learned

Judges construed to mean that the contract must

be

executory on the contractor's part before the English

Act can apply.

Tranton v. Astor(') follows the earlier

ruling. The statute with which Darling

J. was dealing

(t)

(1905) 2 I. R. 590 at 608.

(2) I.L.R. 58, Cal. from P· 193 on,\•ar<ls.

(3) L. R. 4 C. P. 296.

(4) 33 T.L.R. 383.

'

S.C.R. SUPREME COURT REPORTS 833

in Co>.: v. Truscott(

1

)

is nearer the language of our Act.

He hesitatingly proceeded on the debtor and . creditor

basis. We need not go further than this because, as

we have said, if these decisions cannot be distinguished,

then we must with respect differ. We hold therefore

that these contracts which Moolji

Sicka & Company

had entered into with the Government subsisted on

15th November,

1951, and on 14th February, 1952,

and that as Chatturbhuj Jasani, the appellant, was a

partner in the firm he also had both a share and an

interest in them on the crucial dates.

That brings

us to article 299(1) of me

Consti­

tution. It states:-

"All contracts made in the exercise of the execu­

tive power of the Union or of a State shall be expressed

to be made by the President. ..... and all such contracts ...

made in the exercise of that power shall be executed

on behalf

of the

President ... by such persons and in

'uch manner as he may direct or authorise."

The contention was that as these contracts were

not expressed to be made by the President they are

void. Cases were cited to us under the Government

of India Acts of 1919 and 1935. Certain sections in

these Acts were said to be similar to article 299. We

do not think that they are, but in any case the rulings

under section 30(2) of the Government of India Act,

1915, as amended bv the Government of India Act of

1919 disclose a diff~rence of opinion. Thus, Krishnaji

Nilkant

v. Secretary of

State(') ruled that comracrs with

the Secretary of State must be by a deed executed 011

behalf of the Secretary of State for India and in his

name. They cannot be made by correspondence or

orally. Secretary ot State v. Bhagwandas(') and Devi

Prasad Sri Krishna Prasad Ltd. v. Secretary of State(')

held they could be made by correspondence. Secretary

of State v. O.T. Sarin & Company(') took an inter­

mediate view and held that though contracts in the

prescribed form could not

be enforced by either side,

(1) 21 T.L.R. 319.

(>) A.LR. 1937 Born. 449, 451.

(3) A.LR. 1938 Born. 168.

I08

(4) A.LR. i941 A\. 377.

(5) I.L.R. 11Lah. 375.

195+

C/,alturbhtd

Vithaldas

Jasani

.,,

Mores11war

Paras/,ram

and Other:..

Bose].

1954

Chatturb,'1uj

Vit'ialdas

]asani

-,,

J.\{oreshwar

Par ashram

nr.d Others.

834 SUPREME COURT REPORTS [1954 ~

a claim for compensation under section 70 of the Indian

Contract Act would

lie.

Province of Bengal v. S. L.

Puri(') took a strict view and held that even letter~

headed "Government of India" did not comply with

the rule in section

175 (3) of the Government of

India

Act, 1935.

The Federal Court was called upon to construe sec­

tion 40 (1) of the Ninth Schedule of the Government

of India Act,

1935. It held that the directions m

n

were only directory and not mandatory, and the same

view was taken

of article 166 (1) of the present

Constitution

by this court in Dattatreya Moreshtuar

Pangarkar v. State of Bombay(').

None of these provisions is quite the same as article

299. For example, in article 166, as also in section

40(1) of the Government of India Act of 1935, there is

a clause which says that "orders" and "instruments"

and "other proceedings" "made" and "expressed" in

the name of the Governor or Governor-General in

Cou'ilcil and "authenticated" in the manner prescribed

shall not be called in question on the ground that it is

not an "order" or "instrument" etc. "made" or

"executed" by the Governor or Governor-General in

Council. It

was held that the provisions had to be read

as a whole and when that was done it became evident

that the intention

of the legislature and the

Consti­

tution was to dispense with proof of the due "making"

and "execution" when the form prescribed was followed

but not to invalidate orders and instruments otherwise

valid. Article

299( 1) does not contain a similar clause,

so we are unable to apply the same reasoning here.

In our opinion, this

is a type of contract to which

section 230(3)

of the Indian Contract Act would apply.

This view obviates the inconvenience and injustice

to

innocent persons which the Federal

Court felt in

f. K. Gas Plant Manufacturing Co., Ltd. v. The King­

Emperor(3) and at the same time protects Govern­

ment.

We feel that some reasonable meaning must

(1)

;;1 C.W.N. 753·

(2) [1952] S.C.R. 612 at 63,, 633.

(3) [1947]

F.C.R.

141 at 156, 157

S.C.R. SUPREME COURT REPORTS 835

be attached to article 299 ( 1). We do not think the

provisions were inserted for the sake of mere form.

We feel they are there to safeguard Government

against unauthorised contracts.

If in fact a contract

is unauthorised or in excess of authority it is right that

Government should

be safeguarded.

On the other

hand, an

officer entering into a contract on behalf of

Government can always safeguard himself by having

recourse to the proper form. In between

is a large

class of contracts, probably by far the greatest in

numbers, which, though authorised, are for one reason

or other not in proper form. It

is only right that an

innocent contracting party should not suffer

because

of this and if there is no other defect or objection we

have no doubt Government will always accept the res­

ponsibility. If not, its interests are safeguarded

as we think the Constitution intended that they should

be.

In the present case, there can be no doubt that the

Chairman of the Board of Administration acted on be­

half of the Union Government and his authority to

contract in that capacity was not questioned. There

can equally be no doubt that both sides acted in the

belief and on the assumption, which

was also the fact,

that the goods were intended for Government purposes,

namely, amenities for the troops. The only

flaw is

that the contracts were not in proper form and so,

because of this purely technical defect, the principal

could not have been sued. But that

is just the kind

of case that section

230(3) of the Indian Contract Act

is designed to meet. It would, in our opinion, be

disastrous to hold that the hundreds of Government

officers who have daily to enter into a variety of con­

tracts, often of a petty nature, and sometimes in an

emerg~ncy, cannot contract orally or through corres­

pondence and that every petty contract must be effect­

ed by a ponderous legal document couched in a parti­

<:ular form. It may be that Government will not be

bound by the contract in that case, but that is a very

different thing from saying that the contracts as such

are void and of no effect. It only means that the

principal cannot

be sued; hut we take it there would

1954

Chat.urb.izy'

Vi.haldas

Jasani

v.

A1 ores/,wa1

Parashram

and Ot.'iers.

Bou J.

I

195·t

C ,atturhhu}

Vitlial;fas

Jasani

v.

J foreshwar

Para1-hram

and Ot '1ers,

Bose]

836 SUPREME COURT REPORTS [ 1954]

be nothing to prevent ratification, especially if that

was for the benefit of Government. There is autho­

rity for the

view that when a Government officer acts

in

excess of au,hority Government is bound if it rati­

fies the excess: see The Collector of Masulipatam v.

Cavaly Venkata Narrainapah(' ). We accordingly

hold that the contracts in question here are not

voici

simply because the

Union Government could not have

been sued on them

by reason of article 299 ( 1).

Now section 7 (

d) of the Representation of the

People Act does not require that the contracts at

which it strikes should

be enforceable against the

Government; all it requires

is that the contracts should

be

foe the supply of goods to the Government. The

contracts in question are just that and

so are hit by

the section.

The purpose

of the Act is to maintain the purity of

the legislatures and to avoid a conflict between duty

and interest. It

is obvious that the temptation to

place

interect before duty is just as great when there

is likely to be some difficulty in recovering the money

from Government (for example, if Government were to

choose not to ratify the contracts) as when there is

none.

In our opinion, the Election Tribunal was right in

disqualifying Cbatturbhuj Jasani.

We now turn

to Gangaram Thaware. He stood as

a Scheduled

Caste candidate and his nomination was

rejected on the ground that

he did not belong to the

Scheduled

Caste in question, namely the Mahars.

The only question here

is whether he ceased to be a

Mahar when he joined the Mahanubhava

Panth. This

gave rise to much controversy and

we have been pre­

sented with many conflicting opinions. Thus, the

Imperial

Gazetteer of India, Volume XXI, page 301,

states that the founder of the sect repudiated the

caste system as also a multiplicity of Gods and insisted

on the monotheistic principle. At the same time it

says that he taught his disciples to eat with none but

(1) 8 M.I.A. 529 at 554·

S.C.R. SUPREME COURT REPORTS 837

the initiated and to break off all former ties of caste

and religion. Russell in Volume IV of his Tribes and

Castes of the Central Provinces says that the Manbhaos

(Mahanubhau)

is a religious sect or order which has "now" (1911) become a caste. The Central Provinces

Ethnographic Survey, Volume IX, says the same thing

at page 107 and at page 110 and adds that members of

the sect often act as priests or gurus to the Mahars.

As against this, the Election Tribunal has quoted a

number

of opinions which tend the other way. Thus, V. B. Kolte says at page 247 of his Shri Chandradhar

Charitra that no serious attempt

has been made by

them to abolish caste, and Ketkar says at page 76,

Volume

XVIII of the 1926 edition of his Maha.

rashtriya Dhnyankosh that there are two divisions

among the Mahanubhavas, one

of

Sanyasis who

renounce the world and the other a secular one. The

latter

observe the caste system and follow the

ritmls

of their own caste and cirry on social contacts with

their

caste people and marry among them.

Similar

views are expressed by Bal Krishna Mahanubhav

Shastri. But we are not really concerned with their

theology. What

we have to determine are the social

and political consequences of such conversions and that,

we

feel, must be decided in a common sense

practical way rather than on theoretical and theocratic

grounds.

Conversion brings many · complexities in its train,

for it imports a complex composite composed of many

ingredients. Religious beliefs, spiritual experience

and emotion and intellectual conviction mingle with

more material considerations such

as severance of

family and

social ties and the casting off or retention

of old customs and observances. The exact

propor­

tions of the mixture vary from person to person. At

one extreme there

is bigoted fanaticism bitterly hostile

towards the old order and at the other an

easy going

laxness and tolerance which makes the

convenion

only nominal. There is no clear cut dividing line

and it

is not a matter which can be viewed from only

one angle.

1954

Cf.attUrb'iu)

Vitkaldas

Jaasni

v~ .

MOreshwa'r

Pafashrr.im

and Otaers.

Bose J.

1954

Chauurb ;.j

Vit aldas

]1JJani

v

Moru1War

Paras .ram

and Ot.'ps.

838 SUPREME COURT REPORTS [1954]

Looked at from tbe secular point of view, there are

three factors which have to

be considered: (1) the

reactions of the old body, (2) the intentions of the

individual himself and (3) the rules of the new order.

If the old order is tolerant of the new faith and sees

no reason to outcaste or ex-communicate the convert

and the individual himself desires and intends to

retain

his old social and political ties, the conversion

is only nominal for all practical purposes and when we

have to consider the legal and political rights of the

old bodv the

views of the new faith hardlv matter.

The new body

is free to ostracise and outcaste the

convert from its fold if

he does not adhere to its tenets,

but it can

hardly claim tbe right to interfere in matters

which concern the political rights

of the old body when

neither the old body nor the convert

is seeking either

legal or political favours from the new

as opposed to

purely spiritual advantage.

On the otber hand, if the

convert

has shown by his conduct and dealings that

his break from the old order is so complete and final

that

he no longer regards himself as

" member of the

old body and there

is no reconversion and readmit­

tance

to the old fold, it would be wrong to hold

that

he can nevertheless claim temporal privileges

and political advantages which are special

to the old

order.

In our opinion, broadly speaking, the principles laid

down

by the privv Council in the case of a Hindu

convert

to Christianity apply here: not, of course, the

details of the decision but the broad underlying

principle. In

Abraham v. Abraham

(1 ), their Lordships

say:-

"He" (the convert) "may renounce the old law

by which he was bound, as he has renounced his old

religion, or, if he thinks fit, he may abide by the old

law, notwithstanding he has renounced the old

religion."

The only modification here is that it is not only his

choice which must

be taken into account but also the views of the body whose religious tenets he has

(1) g M.I.A. 199 at 242, 243 and 214

S.C.R. SUPREME COURT REPORTS 839

renounced because here the right we are considering

is the right of the old body, the right conferred on it

as a special privilege to send a member of its own

fold to Parliament. But with that modification

the observations which follow apply in their broad

·outline·

"The profession of Christianity releases the con­

. vert from the trammels of the Hindu law, but it <loes

not of necessity involve any change of the rights or

relations of the convert in matters with which

Christianity has no concern, such

as his rights and

interests in, and his powers over, property.

The

convert, though not bound as to such matters, either

by the

Hindu hiw or hy any other positive law, may

bv his course of conduct after his conversion have

shown

by what law he intended to be governed as to

these matters.

He may have done so either by

attach­

ing himself to a class which as to these matters has

adopted

an<l acted upon some particular

law, or by

having himself observed some family usage or custom;

and nothing can surely be more just than that the

rights and interests in his property, and his powers

·over it, should be governed by the law which he has

·adopted, or the rules which he has observed."

Now what are the facts here? 'Whatever the views

·of the founder of this sect may have been about caste,

it

is evident that there has been no rigid adherence

to them among his followers in later years. They have ·either changed their views or have not been able to

keep a tight enough control over converts who join

them and

yet

choose to retain their old caste customs

and

ties. We need not determine whether the

Mahanu­

-bhava tenets encourage a repudiation of caste only as

a desirable ideal or make it a fundamental of the faith

-because it

is evident that present-day Mahanubhavas

admit to their fold persons who elect to retain their ·old caste customs. That makes it easy for the old

·caste to regard the converts as one of themselves

: despite the conversion which for all practical purposes

is only ideological and involves no change of o:status.

1954

Chatturhhuj

Vithaldas

Jasani

v.

Moreshwar

Paras/,ram

and Others.

Bose J .

1954

c ... atturb!inj

Vithaldas

]asani

'.

.Woreshwar

Parashram

llnd Ot.'1ers.

Bose].

840 SUPREME COURT REPORTS [19541

Now no witness has spoken of any outcasting, neither

outcasting in general nor in this special

case. No single

instance

has been produced in which any person who

has joined this

sect from the Mahar community has

ever been outcasted from the Mahars for that reason;

and

as the sect is said to be over

1000 years old, there

has been time enough for such instances to accumulate.

Further.

no instance has been produced of a

Mahanu­

bhava marrying outside his or her old caste whereas

there are instances of Mahanubhavas who have

married non-Mahanubhavas belonging to their own

caste. Nene (P. W. 1), Sadasheo (P. W. 3), Sitaram

(P. W. ·t) and Haridas (P. W. 5) say that a Mahar

convert

does not lose his caste on conversion. He is

admitted to all caste functions and can marry in the

community.

Of these, Sadasheo (P. W. 3) and Haridas

(P. W. 5) are Mahars.

There

is no evidence to rebut this. The witnesses

on

the· other side take refuge in theory and, when

confronted with actual facts, evade the issue by saying

that Mahanubhavas who do these things are not real

Mahanubhavas. Harendra (R. W. 1)

is a

Mahanubhava

Guru and so ought to know, but he affects an other­

worldly indifference

to mundane affairs and says that

as he does not lead a worldly life he does not know

whether converts retain their

caste distinctions and

whether there are inter-dinings and inter-marriages in

.the Mahanubhava fold itself among those who belong­

ed

to different castes before conversion.

Shankar (R. W.

2) says that a convert loses his

caste on conversion but gives no instance of ostracism

from the old fold. In any

case, his evidence is

confined to the sanyasi order among the Mahanu­

bhavas because

he says that every person who be­

comes a convert to this sect must renounce the world

and cannot marry.

W'hen pinned down in cross-exami­

nation

he had to admit that he did know two or three

Mahanubhavas who were leading a worldly life but he

meets that

by saying that they are not real Mahanu­

bhavas. Chudaman (R. W. 3) evades the issue in the

same way.

He is a Mahanubhava

Pujari and so isc

S·C.R. SUPREME COURT REPORTS 841

another person who ought to have special knowledge.

Despite that he

says he cannot give a single instance

of a person belonging to one caste, initiated into the Mahanubluva sect, marrying a person of another caste

initiated into the same Panth. When further pressed

he said the question

<lid not arise as a man lost his

caste

011 con version.

On this evidence, and after considering the historical

material placed before

us, we conclude that

conver­

sion to this sect imports little beyond an intellectual

acceptance of certain ideological tenets and does not

alter the convert's caste status, at any rate,

so far as

the householder section of the Panth is concerned.

So much for the caste consciousness on both sides.

Now considering Gangaram Thaware the individml

we find that he was twice married and on both occa­

sions to Mahar girls who were not Mahanubhavas at

the time of their respective marriages. His first wife

was never converted. His second wife was converted

after her marriage.

The witnesses say he was still

regarded

as a Mahar after his conversion and

aiways

looked upon himself as a Mahar and identified himself

with the caste.

No one on the other side denies this.

As we have shown, they took shelter behind

general­

ities and evaded the issue by saying that in that case

he cannot be a real Mahanubhava. If he was not, then

he must have continued a Mahar even on their

view

The evidence also discloses. that Gangaram Thaware

led Mahar agitations and processions

as a member and

leader of the Mahar caste. In

1936 he contested the

election for the Provincial Assembly

as a Mahar

ondi­

date. No one appears to have questioned his compe­

tency. And lastly, he declared himself to he a Mahar

in the verifica.tion to his nomination form in the

present election

as also in an affidavit filed before the

Returning Officer who rejected his nomination.

The

Returning Officer described that as a

"cleverly worded

document." We have read it and find nothing tricky

or crooked in it. Therefore, applying the test in

Abraham v. Abraham (

1

), we hold

that despite his

(1) 9 M.I.A. 199.

1954

Chatturhiwj

Vithulda1

Jasa'li

v.

Mcreshwar

Paras

1

,ram

and Others ..

Bost].

1954

Chatturb·',uj

Vithaldat

,7asani

v.

.i oreshwar

Paras

1

1ram

and Others.

Bose J.

1953

Det:emhcr 18.

842 SUPREME COURT REPORTS

conversion he continued to be a Mahar

nomination form

was wrongly rejected.

the whole election.

(1954J

and so his

That affects

The other points argued before the Election Tribunal

were not pressed before us. We therefore uphold the

decision

of the Tribunal and dismiss the appeal with

costs.

Appeal dismissed.

Agent for the appellant: I. N. Shroff.

Agent for the respondent: Gan pat Rai.

BISW AMBHAR SINGH

ti.

THE STATE OF ORISSA AND ANOTHER

JANARDHAN SINGH

v.

THE STATE OF ORISSA AND ANOTHER

SIBANARA YAN SINGH MAHAPATRA

ti.

THE STATE OF ORISSA AND ANOTHER.

rPATANJALI sAsTRI c.J., MEHR CHAND

MAHAJAN, S. R. DAs, VIVIAN BosE

and GHuLAM HASAN. JJ.J

Orissa Estates Abolition Act, (Orissa Act I of ]952), ss. 2(g)

2(h) and 3-0tuners of certain zamindaries-Whether inter-

n1ediaries holding an estate iuithin the nieaning of ss. 2(g';

and 2(/i ).

The State Government is en1po\vered under s. 3( 1) to issue a

notification declaring that the estate specified therein has

passed

to the

State, but the notification must be in respect of the

property which

is defined as an estate in s. 2(g) and that estate

must

be held by an intermediary as defined in s. 2(h).

In order to be an intennediary accordirig to the definition in

s. 2(h) the person n1us.t

be, among other things, "a Zamindar,

Jlaquedar, Kherposhdar or Jagirdar within the nieaning of Wajib­

ul-arz or any Sanad, deed or other instrument."