# STATESMAN (PRIVATE) LTD v. H. R. DEB & ORS

- **Citation:** [1968] 3 S.C.R. 614
- **Court:** Supreme Court of India
- **Decided:** 1968-04-02
- **Case number:** Civil APPCal No. 647 of 1967
- **Bench:** M. H!Dayatullah, V. Ramaswami, A. Va!Dialingam, K. S. HEGf>E, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/statesman-private-ltd-v-h-r-deb-ors-4322
- **Pages:** 9

## Headnote

Industrial Disputes Act (14 of 1947), ss. 7(3)(d) and 2•"11ldicial
Of!ic1", if inc/udea office of Magistrate-Writ of Quo Warranto-/n.ru•
ance.
Section 7(3)(d) of the Industrial Disputes Act provides that no person
shall be qualified for appointment as the presiding officer. of a l.abour
Court, unless he has held any judicial office for not less than seven years.
Since 1940 the first respondent held the Office of Sub-Deputy Collector
and was vested with Magisterial powers. In 1959 he was appointed the
presiding officer of a Labour Court and he gave an award aaainst the
appellant. TM appellant questioned the appointment on the ground that
the first respondent had not held 'judicial office' for 7 yeal'S prior to his
appointment.
HELD : A Magistrate holds a judicial office.
That his duties are
partly judicial and partly other does not in any way del!racl from the
position that while acting as a Magistrate he is a judicial officer. An
office means no more than a position to which certain duties are attached.
A public office is one which entitles a man to act in the affairs of others
without their appointment or permission. The office of a Magistrate is a
correct expl'css1on in English and in law.
The word 'office' has been
applied to Magistrates. The Judicial Officers Protection Act. is illlended
to prouict not Civil Judges alone hut also Magistrate. (620 p:621 CJ,
The functions of a Labour Court are of great public importance and
quasi civil in nature.
Men of. experience on the civil side of the law
are more suitable than Magistrates.
Persons employed on multifarious
duties and in addition performing some judicial functions may not truly
answer the requirement of s. 7.
For it cannot ·be denied thac the express.ion "holding a judicial office" signifies more than discharge of judi·
cial functions while holding some other office.
The phrase postulalies
that there is an office and that office is prilllMily judicial. In this case the
distinction was unsubstantial because the Magistrate was holding a fixed
position for nineteen years and performing functions primarily Of judicial
character. [622 B-DJ.
Even if there be some doubt that is to be resolved in favour of upholding the appointment on the ground that the legislature itself by s. 9
contemplatea that such appointments should not be called into queation.
Although the provisions of s, 9 cannot shut out an inquiry (if there is
a clear usurpation) for purposes of a writ of quo warranto at least in an
unclear case the intent of the le)lislature is entitled to great weight The
High C.mrt in a quo warranto proceeding should be slow to pronounce
upon the matter unless there is a
clear
infringement of
the law.
(621 D-FJ.

## Text

STATESMAN (PRIVATE) LTD.
v.
H. R. DEB & ORS.
April 2, 1968
[M. H!DAYATULLAH, C.J., V. RAMASWAMI, C, A. VA!DIALINGAM,
..
K. S. HEGf>E AND A. N. GROVER, JJ.J
Industrial Disputes Act (14 of 1947), ss. 7(3)(d) and 2•"11ldicial
Of!ic1", if inc/udea office of Magistrate-Writ of Quo Warranto-/n.ru•
ance.
Section 7(3)(d) of the Industrial Disputes Act provides that no person
shall be qualified for appointment as the presiding officer. of a l.abour
Court, unless he has held any judicial office for not less than seven years.
Since 1940 the first respondent held the Office of Sub-Deputy Collector
and was vested with Magisterial powers. In 1959 he was appointed the
presiding officer of a Labour Court and he gave an award aaainst the
appellant. TM appellant questioned the appointment on the ground that
the first respondent had not held 'judicial office' for 7 yeal'S prior to his
appointment.
HELD : A Magistrate holds a judicial office.
That his duties are
partly judicial and partly other does not in any way del!racl from the
position that while acting as a Magistrate he is a judicial officer. An
office means no more than a position to which certain duties are attached.
A public office is one which entitles a man to act in the affairs of others
without their appointment or permission. The office of a Magistrate is a
correct expl'css1on in English and in law.
The word 'office' has been
applied to Magistrates. The Judicial Officers Protection Act. is illlended
to prouict not Civil Judges alone hut also Magistrate. (620 p:621 CJ,
The functions of a Labour Court are of great public importance and
quasi civil in nature.
Men of. experience on the civil side of the law
are more suitable than Magistrates.
Persons employed on multifarious
duties and in addition performing some judicial functions may not truly
answer the requirement of s. 7.
For it cannot ·be denied thac the express.ion "holding a judicial office" signifies more than discharge of judi·
cial functions while holding some other office.
The phrase postulalies
that there is an office and that office is prilllMily judicial. In this case the
distinction was unsubstantial because the Magistrate was holding a fixed
position for nineteen years and performing functions primarily Of judicial
character. [622 B-DJ.
Even if there be some doubt that is to be resolved in favour of upholding the appointment on the ground that the legislature itself by s. 9
contemplatea that such appointments should not be called into queation.
Although the provisions of s, 9 cannot shut out an inquiry (if there is
a clear usurpation) for purposes of a writ of quo warranto at least in an
unclear case the intent of the le)lislature is entitled to great weight The
High C.mrt in a quo warranto proceeding should be slow to pronounce
upon the matter unless there is a
clear
infringement of
the law.
(621 D-FJ.
CIVIL APPELLATE JURISDICTION:
Civil APPCal No. 647 of
1967.
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STATESMAN LTD. v. H. R. DEB (flidayatullah, C.J.)
615
Appeal from the judgment and order dated January 5, 1967
of the Calcutta High Court in Appeal from Original Order
No. 134 of 1966.
Sachin Chaudhuri, !. K. Glzoslz and D. N. Gupta, for the
appellant.
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S. C. Mazumilar and A. K. Mitter, for respondent No. 2.
B. Sen, G. S. Chatterjee for P. K. Bose, for respondent No. 3.
The Judgment of the Court was delivered by
Hidayatullah, C.J. This appeal on certificate arises from a
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petition under Art, 226 of the Constitution of India filed in the
High Court at Calcutta by the appellant, the Statesman Private
Ltd. This company prints 'and publishes daily and weekly newspapers and undertakes general printing work at Calcutta.
By
that writ petition the Company asked for a writ of certiorari
against the Second Labour Court, West Bengal with a view to·
quashing an award, 21 September 1960, reinstating one Sheikh
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Kaloo, one of its employees. The Company had dismissed the
said Kaloo after holding an inquiry but the Second Labour Court
ordered his reinstatement with half wages for the period of his
'forced unemploymenf.
The writ petition was heard by B. N.
Banerjee J. and by his order, 15 February, 1962, the petition
was granted and the order of the Tribunal was quashed.
The
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workmen who had sponsored the case of Kaloo appealed in the
High Court. During the course of the appeal an application was
filed by the Company stating that the Tribunal presided over by
Mr. H. R. Deb was not qualified in law to agj_udicate upon the
dispute inasmuch as the appointment of Mr. Deb· was in violation
of the provisions of s. 7(3)(d) of the IndustriaJ Disputes Act.
1947. On June 16, 1964 by another affidavit the particulars of
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the services of Mr. Deb were stated to show that Mr; Deb had
not held a 'judicial office' in India for not less than 7 years and
as this was a condition precedent his appointment was illegal and
the award made by him was a nullity. The Company stated that
this was so held in another matter (Matter No. 120/1961 decided
on July 28, 1965 between Shree Hanuman Foundries v. H. R. Deb
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and others. The appeal was heard and allowed and the order of
B. N. Banerjee J. was set aside but liberty was given to the Company, oa terms as to costs, to amend the original petition and the
learned Judge was directed to hear and determine the amended
petition. The amendment was effected on August 5, 1964. On
September 3, 1964 the Divisional Bench in Hanuman Foundries
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case delivered judgment. Two separate judgments were delivered.
Bachawat J, held that the provisions of 11. 7(3) (d) of the Industrial Disputes Act were directory while Basu, J. held them to be
mandatory. Bachawat J. also held that even if the appointment
616
SUPREME COURT REPORTS
(1968) 3 S.C.R.
of Mr. Deb was not regular, the doctrine of de facto determination
by a Court apparently possessed of jurisdiction applied and the
order could not be questioned. Basu J. held to the contrary. The
matter was then referred to Sinha J. (as he then was) who held
that (a) Mr. Deb had not held judicial office for 7 years prior
to his appointment; (b) thats. 7 (3)(d) of the Industrial Disputes
Act was mandatory; ( c) a writ of quo warranto must therefore
issue against him; ( d) that the de facto doctrine applied; and
( c) proceedings for a writ of certiorari was collateral and, therefore, not available to quash the award of Mr. Deb.
The case of Hanuman Foundries as decided by the Full Bench
was followed in the present writ petition by B. C. Mitra J. on
June 6, 1966 and the writ petition was dismissed. The Company
appealed against the judgment of B. C. Mitra J. Sinha C.J. and
A. K. Mookerjee J. dismissed the appeal, January 5, 1967 but
granted a certificate and this appeal is the result.
Although this appeal is quite separat"' from the Hanuman
Foundries case, the· decision in that case was the one canvassed
before us. After hearing the arguments in the case we are satisfied
that the appeal must fail on the ground that Mr. Deb was competent to exercise jurisdictiiln and his appointment cannot be
called in question. In this view of the matter the vecy interesting
and learned discussion of the de facto doctrine need not detain us
and we express no opinion about it.
The question falls to be considered on the words and scheme
of s. 7 and some other sections. To approach the problem we
may first see some other provisions.
The Act is intended to
make provision for the investigation and settlement of industrial
disputes. Chapter II names the authorities under th.e Act. They
are Works Committee (s. 3), Conciliation Offic~rs (s. 4), Boards
of Conciliation ( s. 5), Courts of Inquiry ( s. 6), LabOur Courts
( s. 7), Tribunals ( s. 7 A), National Tribunals ( s. 7B). Each
of these sections prescribes the qualifications of the persons fit to
be appointed. They are either wholly or partially different as we
shall see presently. Section 7C, however lays dowti that no
person shall be appointed to, or continue in, the office of the presiding officer of a Labour Court, Tribunal or National Tribunal
if (a) he is not an iildejiendent person; or (b) he has attained
the age of 65 years.
Section 8 deals with vacancies and then
comes s. 9 laying down the finality of orders constituting Boards
etc. We shall read 1t presently.
We are concerned with s. 7 which provides for the constitution. of Labour Courts and prescribes the qualifications for appointment. The section may be read here :
"7. Labour Courts."
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STATESMAN LTD. v. H. R. DEB (Hidayatullah, C.J.)
61 7
(1) The appropriate Government may, by notifica·
tion in the Official Gazette, constitute one or more
Labour Courts for the adjudication of imfustrial disputes relating to any matter specified in the Second
Schedule and for performing such other functions a&-
may be assigned to them under this Act
( 2) A Labour Court shall consist of one person
only to be appointed by the appropriate Government.
( 3) A .person shall not be qualified for appointment
as the presiding officer of a Labour Court, unless-
(a) he is, or has been, a Judge of a High Court;
or
(b) he has, for a period of not less than three
years, been a District Judge or an Additional District
Judge or
( c) he has held the office of the chairman or any
other member of the Labour Appellate Tribunal constituted under the Industrial Disputes (Appellate Tribunal} Act, 1950, or of any Tribunal, for a period of not
less than two years; or
(d) he has held any judicial oflice in India for not
less than seven years; or
( e) he has been the presiding officer of a Labour
Comt constituted under any Provincial Act or State
Act for not less than five years."
This matter is covered only by cl. ( d) of the third sub-section •.
It may, however, be noticed that no special qualifications are
prescribed for Works Committees. Conciliation Officers, Boards
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of Conciliation and Courts of Inquiry such as are to be found in
s. 7 quoted here.
Special qualifications of the members are 10
be found only in respect of Labour Courts, Tribunals and
National Tribunals. These are one-man bodies and tlle qualification of the member is stated. In the case of Tribunals the qualification is :
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"7 A. Tribunals.
(I)
(2) .....
. ....
. ....
(3) A person shall not be qualified for appointment
as the presiding officer of a Tribunal unless--
( a) he is, or has been, a Judge of a High Court; or
(aa) he has, for a period of not less than three years,
618
SUPREME COURT REPORTS
[1968] 3 S.C.R.
been a District Judge or an Additional District Judge;
or
( b) he has held the office of the chairman or any
other member of the Labour Appellate Tribunal constituted under the Industrial Disputes (Appellate Tribunal) Act, 1950, or of any Tribunal, for a period of not
less than two years."
:.and in the case of National Tribunals the qualifications are :
"7B. National Tribunals.
( 1) .•...
(2) .....
( 3) A person shall not be qualified for appoint-
:ment as the presiding officer of a National Tribunal
:unless-
(a) he is, or has been, a Judge of a High Court; or
(b) he has held the office of the chairman or any
other member of the Labour Appellate Tribunal constituted under the Industrial Disputes (Appellate Tribunal) Act, 1950, for a period of not less than two years."
The selection thus is most restricted in the case of National Tribunals, and in varying degree less and less restricted as we pass
to Tribunals and Labour Courts. Thus National Tribunals can
be presided over only by a person who is or has been a Judge of
;a High Coun or has held the office of the chairman or any other
member of the Labour Appellate Tribunal for a period of not
Jess than two yeaci.
There qualifications do not admit of any
doubt or exception since the incumbent's qualifications are quite
clearly set down. In the case of Tribunals the range of selection
is made wider by including a District Judge or an Additional
District Judge, who has held this office for a period of not less
than 3 years.
The selection is made still wider in the case of
Labour Courts by making competent in addition presiding officers
·of LabQur Courts constituted under any Provinciru Act of State
Act for not Jess than 5 years, and persons holding judicial office
for not less than seven years. There is, however, no definition of
judicial office and here the difficulty arises.
Mr. Deb, tlie incumbent of the office in the present case, had
;at his back the following career :.
(a) Sri Hem Ranjan Deb was first appointed on
23rcl January 1940 as a Sub Deputy Collector on probation and on 24tb January 1940 was appointed as
Sub-Deputy Collector and Circle Officer.
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STATESMAN LTD. v. H. R. DBB (Hidayatullah, C.J.)
619
(b) On 1st July 1940 he was vested wi~ power of
a third class Magistrate. He was confirmed m the post
of a Sub-Deputy Collector on 23rd January, 1941.
(c) On 1st July 1950 the said Hem Ranjan Deb
was vested with Powers of a Second class Magistrato
and on 1st April 1951 he was vested with powers of
a FJl'St Class Magistrate •••
On July 27, 1959 Mr. Deb was appointed the p,:esiiling officer
of the Second Labour Court by Notification No. 3422-IR/IR/
3A-9/59. The notification read:
"In exercise of power conferred by Sul!-sections
(2) and (3) of S.T. of the Industrial Disputes Act 1947
read with S. 7C of the sai<l Act, the Governor is pleased
to appoint Hem Ranjan Deb who is an independent
person and has not attained the age Of 65 years and
has held a judicial office in India for not less than 7
years to be . the Presiding Officer of the Second Labour
Court constituted under the Government of West
BengaI's notification No. 1727-IR/IR/3A-1/58 dated
26th April 1958 vide Shri Probodh Chandra Maitra
(Calcutta Gai.ettee, 6th August 1959)".
The notification took into account the provisions of s. 7C already
analysed by us and also declared that he was qualified under
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s. 7 ( 3 )( d). Government apparently considered the office held
by him from January 23, 1940 to July 27, 1959 a.~ a judicial
office necessary for appointment. Since the period for which he
held his earlier office is well in excess of 7 years the only question
is whdher it was a 'judicial office'. If it was then undoubtedly
Mr. Deb was qul&lified. If there be a dispute then the matter falls
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to be considemi. In doing so we must take into further account
the provisions of s. 9 ·of the Act as substituted by the Industrial
Disputes (Amendment and Miscellaneous Provisions) Act, 1936
(36 of 1956). That amending Act also recasts. 7 in its present
fo~ 11!1d ad<ied ss. 7 A, 7B and 7C. Section 9 may now be read
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but 1t JS not necessary to read beyond the first sub-section :
"9. Finality of orders constituting Boards, etc.
(1) No order of the appropriate Government or
of the .Central Government appointing any person as
the chairman or any other member of a Board or Court
or as t!'e presi<!ing officer of a Labour Court, Tribunal
or National Tnbunal shall be called in question in any
manner; and no act or proceeding before any Board or
Court shall be called in question in any manner on the
ground. merely of .. the. existence of any vacancy in, or
defect m the conshtuuon of, such Board or Court."
L7 Sup.Cl/68-JS
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(1968] 3 S.C.R.
It may be noticed that the first part refers to the appointment of
any person as the chairman or any other member of a Board or
Court or as the presiding officer of a Labour Court, Tribunal or
National Tribunal. The second part deals with Board or Court
and in view of the definition of 'Board' and 'Court' in s. 2 ( c)
and (f) refers to a Board of conciliation or Court of Inquiry
constituted under the Act. With these we are not concerned and
the second part of s. 9, therefore, has no bearing although in the
High Court that part alone was considered and the first part
ignored.
Now the points for us to decide are first whether Mr. Deb held
a 'judicial office' and next even if our opinion be that he did not
can we declare his appointment to be invalid when s. 9 prohibits
the calling in question of an appointment by Government.? Before
we deal with these points in the light of the arguments addressed
to us, we may say a few words about how these points were viewed
by the High Court.
Banerjee J. who first heard the Hanuman Foundrit!s case made
a distinction between 'judicial office' and 'judicial function' and
came to the conclusion that although magistrates perform judicial
functions, they could not be said to hold 'judicial office'.
Bachawat J., distinguished between 'judicial office' and 'judicial
o;ervice'. He referred to the provisions of the Constitution bearing
upon the appointment of Judges of the High Court and the District
and subordinate courts, where these expressions occur and demon·
strated the difference.
In his view magistrates could be said to
occupy judicial office, but they did not belong to judieia! service.
The approach of Sinha and Basu JJ., was the same as that of
Banerjee J., although the matter was stated with great elaboration
and copious references to the Criminal Procedure Code, and Eng·
lish and American cases, and text books.
It is not necessary to go over this field. All learned Judges
seem to agree that a magistrate exercises judicial functions. '11tls
does not admit of any doubt and no reasons are required. That
his duties are partly judicial and partly other does not in any
way detract from the position that while acting as a inagistrilte
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he is a judicial officer. The dispute, therefore, really reduces itG
self to this : Does the magistrate hold an "office».
An office
means no more than a position to which certain duties are attached.
According to Earl Jowitt's Dictionary a public offiee is one which
entitles a man to act in the affairs of others without their appoint·
men! or permission. The 'office of a magistrate' is a correct
expression in English and in law. Indeed the well-known maxim
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of Coke on .Littleton (234a) officio magistratus non. debent esse
venalia (the offices of a magistrate ought not be saleable) clearly
brings out that the word office can be applied to magistrates. Thus
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STATESMAN LTD. v. H. R. DEB (Hidayatullah, C.J.)
621
there may be an office of a judge ( ofjicii judicis) which in ecclesiastical law at least was said to be promoted when criminal proceedings were taken. But there may be also the office of a
magistrate.
Cicero in his De Legibus and De officiis makes no
difietcnce between a magistratum and a judex. His famous .saying
MagiJtratum /egem esse loquentem, legem autem mutum magis-'
tratum (The Magistrate is a speaking law., but the law is a silent
magistrate) was intended to apply to all judges of all kinds. The
word 'office' has been applied to magistrates by Tacitus, Ovid
and others. Bachawat J. has given m'any references to bear out
the meaning we have given and has very pertinently pointed out
that the Judicial Officers Protection Act, is intended to protect
not Civil Judges alone but also Magistrates. The distinction
between judicial function and judicial office in this context is
artificial and unsubstantial.
We agree with Bachawat J., that a
magistrate holds a judicial office.
Once this is so held the appeal must fail.
Bu~ we cannot overlook the fact that even jf there be some doubt that is to be resolved
in favour of upholding the appointment on the ground that the
Legislature itself contemp!ates that such appointments should not
be called into question.
Although the provisions of s. 9 cannot
shut out an inquiry (if there is a clear usurpation) for purposes
of a writ of quo warranto but at least in an ·unclear case the intent
of the legislature is entitled to great weight. The Legislature has
created the conditions of appointment and with its last voice has
shut out inquiry.
The provisions of s. 7 ( 3 )( d) therefore, are
not so absolute as to be wholly mandatory in the same way as
the provisions of other clauses .are since they admit of no doubt,
and therefore do not require construction.
The High Court in
a quo warranto proceeding should be slow to pronounce upon
the matter unless there is a clear infringement ol the law .. If a
station master were appointed we can r.eadily question the appointment but when a per.son exercising judicial functions is appointed
one cannot be too astute to say that the person does not hold a
judicial office when it must at least be conceded that he holds
an office of some kind. Nor does the argument that magistrates
will claim to be appointed Judges of the High Court need detain
us. The scheme of Chapter V of Part VI of the Constitution has
its o~n .~ect OD; t~e meaning of the expressions 'judicial office'
'.1fld 1ud1c1al semce . In any case the use of the same expression
m any other ena~tme~t J;!Ot in pari materia can have no bearing
upon the Industnal Disputes Act and vice versa. In the Constitution these words must bear the meaning which the context ·dictates and in that connection the history of appointment of Judges
cannot be overlooked.
J..e:;t our m~aning be extended by Government to cases undeservmg of savmg .under s. 9, we wish to make it clear that the
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(1968] J S.C.R.
intention of the Legislature really is that men who can be described as independent and with sufficient judicial experience i:nust
be selected. The :iru;ntion of High COllfl Judges and District
Judges earlier in the same section indicates that Ordinarily judicial
officers from the civil judiciary must be selected at last so long
as the separation of judiciary from the Executive in the public
services is not finally achieved. The appointment of a person
from the ranks: of civil judiciary carries with it an assurance "'.hich
is unique. The functions of a Labour Court are of great pμblic
importal)ce and quasi civil in nature. MeJ! ot experience on the
civil side of the law are more suitable than Magistniles. Persons
employed on .multifarious duties and in addition performing some
judicial functions, may not truly answer the requirement of s. 7
and it may be open in a quo warranto proceeding to question
their appointment on the ground that they do not hold essentially
a judicial office because they primarily perform other functions.
For it cannot be denied that the expression "liol!iing a judicial
office" signifies more than discharge Of judicial functions while
holding some other office. The phrase postulates that there is an
office and that that offic!l is primarily judicial. Office means a
fixed position for performance of duties. In this case the distinction was unsubstantial because the Magistrate was holding a
fixed position for nineteen years and performing functions primarily of a judicial character. The case was not fit for interference by a writ in view of the provisions of s. 9 of the Act.
In the result we are o( opinion that the judgment under appeal
is right although the reasons justifying the conclusion are different
from those accepted by the Divisional Bench from the earlier case
of the same Court. Tue appeal fails and will be dismissed with
costs.
Y.P.
Appeal dismissed.
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