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CIVIL APPELLATE JURISDICTION Civil appeal No. 2086 of 1974 and 67 of 1975 From the Judgment and order dated 20th September, 1973 of the Madras High Court in Tax Case No . 310 of 1967. Rarnakrishna, Mohan Parasaran and Mrs. Janaki Rama chandran. for the Appellants in C.A. No. 2086 of 1971 and for the Respondent in C.A. No. 67 of 1975. C. Manchande, Dr. Gauri Shankar, K.P. Bhatnagar and Miss A. Subhashini, for the Appellant in C.A. No. 67 of 1975 and for the Respondent in C.A. No. 2086 of 1974. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. These two appeals are from the judgment and order of the Madras High Court dated 2oth September, 1973 by certificates of fitness granted by the High Court under section A 65 of the Estate Duty Act, 1953, hereinafter called the Act. Civil Appeal No. 2086 of 1974 is by accountable persons and Civil Appeal No. 67 of 1975 is by the revenue. The judgment under appeal is reported in 94 I.T.R. at page 323. The accountable persons are the sons of one late M. Chindermbara Chettiar hereinafter called the deceased. The deceased was the Karta of a Hindu undivided family. He gave his first son Muthiah, in adoption to his divided paternal uncle Pethachi Chettiar, and adoption ceremony was held on 7th June, 1931. Subsequently his second son, also called Pethachi, was born in 1933, with whom the deceased was joint throughout his life. On 21 February, 1954, prior to proceeding to Malaya by air, the deceased took out a personal accident insurance policy with the United India Fire and General Insurance Company Ltd. hereinafter cal- led the Insurance Company . Under the terms of the said policy which was to be in force for one month, the Insurance Company had agreed that if at any time during the currency of the said policy, the deceased should sustain any accident resulting in any injury or injury leading to his death, then, the Insurance Company undertook to pay to the assured or to the legal representative of the assured in case of the assureds death, such sum as might be appropriate in the Table of Benefits appended to the Policy. The Table of Benefits mentioned that in case of death or total disablement the benefit payable was R.S 2 lakhs, in case of partial disablement, R.S 1 lakh., in case of temporary disablement, a weekly payment of Rs.1200 or Rs.300 according to the nature of the disablement. The policy, inter alia, provided that the policy is unassignable and the companypany shall number be affected by numberice of any trust or purported to be imposed upon assignment of or of any charge or lien imposed or purported or any dealing with the policy and the receipt of the insured or the executors or administrators of the insured for any moneys payable thereunder shall in all cases be any effectual discharge to the companypany. A sum of Rs.250 was paid or credited as paid by the deceased as and towards the premium and other charges for the aforesaid personal accident insurance policy. It also appeared that in the proposal Form dated 20th February, 1954 filed by the deceased with the Insurance Company, the deceased had effected a numberination in favour of his son M. Ct. Muthiah. On the 13th March, 1954, the deceased died following the crash of the airliner in which he had travelled. On his death the Insurance Company paid the numberinee, the appellant No. 1 herein a sum of R.S 2 lakh which was the benefit stipulated to be paid, in such an event, under the terms of the policy. At the time of his death the deceased had other properties and interests. One was his interest as an undivided companyarcener in his joint family which companysisted after the adoption away of his first son A. Muthiah of the deceased and his second son Pethachi. In the assessment under the Estate Duty Act, 1953 hereinafter called the Act , the Deputy Controller of Estate Duty was of the view that the personal accident insurance money of R.S 2 lakhs paid by the Insurance Company should be charged to estate duty and further that it had to be aggregated with the rest of the properties passing on the deceaseds death. He held further that the insurance money of R.S 2 lakhs was property which the deceased was companypetent to dispose of by will. Before the Deputy Controller, it was urged that the amount of R.S 2 lakhs companyld number, in any case, be aggregated with the rest of the properties, but must be brought to charge independently as a separate estate in itself, the companytention being that the deceased had numberinterest at all in the said insurance money. The Deputy Controller rejected this companytention as untenable, holding that the deceased did have an interest in the insurance money. As in respect of the deceaseds interest in the companyarcenary property, which had to be included in the dutiable estate, the Deputy Controller took the view that such interest extended to 1/2 share of the joint properties on the basis that the deceased and his second son Pethachi were alone entitled as companyarceners to the said properties. He rejected the companytention that M. Ct. Muthiah who had been adopted away from this family in 1931 was nevertheless entitled, as on the date of the deceaseds death, to an equal interest in the deceaseds family properties, so that the quantum of the deceaseds companyarcenary interest was numberone-half but only-one-third of the total value of the family properties. It was urged before the Deputy Controller that the adoption of M. Ct. Muthiah in 1931 was on the basis that numberwithstanding his adoption into another family, M. Ct. Muthiah must companytinue to retain his interest in the properties belonging to the family of his birth. A Muri in Tasil in curdgeon-leaf purported to have been executed on 7th June, 1931 was produced before the Deputy Controller in support of the above plea. The Deputy Controller did number accept the genuineness of the said document. But even otherwise, the Deputy Controller proceeded to hold that the Muri had numberlegal effect on the companytinued rights of adopted son in the family of his birth subsequent to his adoption. He accord ingly included, in the dutiable estate, one-half of the joint family properties as being the measure of the deceaseds companyarcenary interest. The accountable persons appealed against the above assessment to the Appellate authority which at that time, as the law then was, the Central Board of Revenue. The Central Board held that the insurance money of S 2 lakh was chargeable to estate duty under section 6 of the Act. The Board took the view that under the terms of the policy, the deceased had the right to numberinate a person to take the moneys on the deceaseds death and also the capacity to dispose of the amount by testamentary disposition. On the question as to whether the amount of R.S 2 lakhs must, in any event, be charged as a separate estate in itself, segregated from the rest of the properties, the Central Board rejected the accountable persons companytention that the deceased never had any interest in the said insurance money. On the terms of the accident policy, the Board was of the view that the deceased did have the power of disposition over the insurance money both by the exercise of the power of numberination under the policy and also independently by the exercise of any testamentary power. On the point relating to the exact quantum of the deceaseds interest in companyarcenary property, the Board accepted the genuineness of the Muri. Before the Board, an Agreement in writing dated 19th August, 1976 between A. Muthiah and Pethachi. the two sons of the deceased, was produced to further support the claim that Muthiah retained his companyarcenary interest in the family of his birth despite his adoption into another family. The Board however held that the Hindu law adoption makes the adopted son lose his property interests in the family of his birth and that the dwamushayana form of adoption pleaded by the accountable persons had become obsolete in Madras. The Board rejected the claim that there was a custom prevailing in the Muttukttsi Chettiar companymunity, to which the deceased belonged, under which the adopted son never loses his property rights in the family of his birth. On these findings, the Board upheld the assessment of one-half of the value of the whole of the joint family property as the measure of the deceaseds tiahle interest. After the decision of the Board, the following questions of law were referred to the High Court. Whether the deceased was companypetent to dispose of the moneys payable under the accident policy and whether the sum of Rs.2,00,000 is includible in the principal value of the estate? If the sum of R.S 2 lakhs was liable to be assessed to duty whether the said amount companyld be aggregated with the other properties or should be assessed as an estate by itself? Whether the share of the deceased Chindambaram Chettiar in the property of the joint family at the time of his death was one half or one third of the property? The High Court by the judgment under appeal answered the first question in favour of the revenue and against the accountable person and the second and third questions were answered against the revenue and in favour of the accountable person. Being aggrived by the answer against the first question, the ac companyntable person has preferred the appeal being appeal No. 2086 of 1974 and on the certificate granted by the High Court and on the subsequent two questions, the revenue obtained the certificate of fitness to appeal to this Court which is appeal No. 67 NT of 1975. The High Court in the judgment under appeal held that under section 5 of the Act, all properties which passed on the death of the person were liable to estate duty. Under section 6 of the Act, property which the deceased was at the time of his death companypetent to dispose of should be deemed to pass on his death and under section 3 1 a , a person was deemed companypetent to dispose of property if he has such an estate or interest therein or such general power as would, if he were suijuris, enable him to dispose it of. General power included every power of authority enabling the holder thereof to appoint or dispose of property as he thought fit, whether exercisable by instrument inter vivos or by will or both. A personal accident policy was number a companytract of indemnity. The amount payable on death of the insured was fixed in the policy itself. It was in the companytemplation of the parties even at the time of the companytract that in the case of death the amount would be payable either to the numberinee or the legal representative and number to A the assured. It was thus in the nature of a provision made by the deceased for such person. The deceased had numberinterest in the money as such because that came into existence the moment after his death and was payable to the numberinee or legal representative. But he had a right in the payment on his death to his legal representatives. In other words, he had interest over the payment of money and number in the money itself. He had a right to take away that right of the legal representatives to receive the money and to vest it in some other person by will. He companyld numberinate a person to whom the amount should be paid. Nomination in such a case was in the nature of a disposition by will and as such till he breathed his last he companyld cancel such numberination and numberinate another. The numberinee, unlike an assignee of life policies, got title to the money on death, for the property itself came into existence by reason of the death and was payable to the numberinee by virtue of the power of disposition by will which deceased had over the sum. The High Court further held that the money paid on death was property and that was clear. This property, according to the High Court, came into existence at the time of death. The High Court further held that though the property was number in existence before his death, since it came in at the time of his death, the deceased was companypetent to dispose of the same by will. It was this power, according to the High Court, of disposal that attracted the provisions and made it property which was deemed to pass on his death under section 6 of the Act. The beneficial interest in the policy which accrued or arose on death was the sum paid out under the policy and this beneficial interest having been purchased by the deceased, the provisions of section 15 of the Act were also attracted. Further, the estate had been depleted to the extent of the premium paid and the beneficial interest purchased and the deceased number having received a full equivalent for what he has paid and having regard to the nature of the policy, the intention from the beginning was to make a provision. The principal value of the estate that was deemed to pass under section 6 and which accrued or arose under section 15 was that sum which was paid out under the policy. As there was numberdevolution of interest from the deceased to another person and from the very inception the amount was payable only to the numberinee or legal representative, section 5 of the Act was number applicable. It was further held by the High Court that in the case of a personal accident policy, the property was number the policy but the ultimate money that was paid and that should be deemed to pass on death of the deceased because of his companypetency to dispose of the same by will and the holder of the policy had a light to have the amount paid to his legal representative or numberinee. The right was with respect to the disposition of the money payable under the policy and number a right in the money itself. But in case of a life insurance policy, both the policy and the money payable thereon was property which companyld be settled during the lifetime of the insured. As the deceased never had any interest during his lifetime in the money paid on death under the personal accident policy, though he was companypetent to dispose of the same by will, the sum paid under the policy was number aggregatable with the other estate of the deceased and was to be treated as an estate by itself under section 34 3 of the Act. The High Court held that though as the deceased was companypetent to dispose of the moneys payable under the policy, the sum of S 2 lakhs was includible in the principle value of the estate but the same was number liable to be aggregated with the other properties and had to be assessed as an estate by itself. Regarding adoption, the High Court was of the view that the type of adoption set out by the accountable person was recognised by the custom of the Nattukottai Chettiar companymunity, the terms of the muri formed part of the adoption and the adoption companyld number be companysidered de hors the agreement and hence the deceased had only one-third share in the joint family properties at the time of his death. In order to appreciate the question involved in Civil Appeal No. 2086 of 1974, it is necessary to bear in mind the scheme of the Act. Section 5 deals with levy of estate duty. It states that there shall be levied and paid upon the principal value ascertained in the manner provided of all properties which passes on the death of such person. Therefore, three factors are important 1 there must be passing, 2 of such property and 3 such passing on must be on the death of a person. Section 2 15 of the Act defines property as inclusive of any interest in property movable or immovable, the proceeds of sale thereof and any money or investment for the time being representing the proceeds of sale and also includes any property companyverted from one species into another by any method. There are two Explanations which are number necessary to be set out in detail. Section 2 16 deals with property passing on the death and includes any property passing either immediately on the death or after any interval, either certainly or companytingently, and either originally or by way of substitutive limitation, and on the death includes at a period ascertainable only by reference to the death. Section 3 1 a , b c , inter alia, provides for certain situations in which a person is deemed companypetent to dispose of property. Section 5 as we have numbered before deals with the levy of estate duty. Section 6 deals with property within disposing capacity and provides that property which the deceased was at the time of his death companypetent to dispose of shall be deemed to pass on his death. Section 14 deals with policies kept up for a donee. It is number necessary to set out the actual terms of the said provisions. Section 15 deals with annuity or other interest purchased or provided by the deceased and provides that any annuity or other interest, purchased or provided by the deceased, either by himself alone or in companycert or by arrangement with any other person shall be deemed to pass on his death to the extent of the beneficial interest accruing or arising, by survivorship or otherwise, on his death. Section 34 of the Act provides for aggregation and stipulates that for purposes of determining the rate of the estate duty to be paid or D any property passing on the death of the deceased, what kinds of property should be aggregated. Except sub-section 3 of section 34, numberhing is material for our present purpose. Sub-section 3 of section 34 reads as follows Notwithstanding anything companytained in sub- section 1 or sub-section 2 , any property passing in which the deceased never had an interest, number being a right or debt or benefit that is treated as property by virtue of the Explanation to clause 15 of section 2, shall number be aggregated with any property, but shall be an estate by itself, and the estate duty shall be levied at the rate or rates applicable in respect of the principal value thereof. Sree C. Ram Krishan, learned companynsel for the accountable persons in the first appeal before us and who was the advocate who had appeared before the High Court made various submissions. He submitted that it was a companydition precedent for the attraction of the duty that a the estate holder must have had possessed or enjoyed a property or an interest in property b the interest in a property might be either vested or companytingent c but that interest should be with regard to either an immovable property or a movable property or an interest in immovable or movable property which was capable of being ascertained during the lifetime or at the time of the death of the estate holder d a companytingent interest companyld fall within the purview of the Act only if the interest was of a tangible nature and was capable of being ascertained, that is to say, the estate holder must always be having a possibility to enjoy or possess that interest either actually or companystructively during his lifetime itself. He cited the example of a life insurance policy. According to companynsel, if the above tests were satisfied then there had to be a passing of that property or interest as companytemplated by section 2 16 of the Act. Even though a person might have a power to dispose of a property or interest in property, he companyld number or his estate companyld number be brought within the purview of the Act solely because of the above factors. Because over and above this, in order for an estate to be liable for estate duty the power of disposition must be with regard to a property capable of being ascertainable during his lifetime or at the time of his death. It was urged that a property or interest in property has necessarily to change hands in order to attract estate duty. There has also to be a change in the beneficial possession and enjoyment of the property or the interest in that property. In other words, it was submitted, the property of interest which was liable for estate duty under the Act has to pass through the estate of the deceased. According to the companynsel, applying the above principles it companyld number be said that an accident insurance policy had the characteristics of a property or interest in property and therefore was number liable for estate duty because an accident insurance policy companyld number be companystrued as a movable property unlike a life insurance policy or an annuity because as laid down in section 2 15 it was number only necessary for a person to have property or interest in property but that interest must be in regard to a movable property and his interest should also be capable of being ascertainable during his lifetime or at the time of his death in that movable property. An accident insurance policy, according to him, companyld number be companystrued as a property or an interest in property since a person who possessed it companyld number also be said to have a companytingent interest because there was every possibility of the accident policy getting extinguished or rendered worthless during his lifetime on the other hand in the case of a life insurance policy, there is always a tangible companytinuing interest only that the value of that interest might be subjected to a change at the time of passing of the property. Further it was submitted that it was number necessary that during the lifetime of the deceased the property in question should have attained the full value e.g. Annuity. An annuity companyld mature even after the death of the estate holder. But it must be numbered that the estate holder in the case of an annuity deposit knew precisely the value of the companytingent interest that would mature at a future date. Consequently even a companytingent interest which did number get crystalised during the lifetime of the deceased but which interest would, with certainty, accrue after the demise of the estate. holder will be caught by section 6 as a property passing from the deceased to the beneficiary. Thus though only a future interest that that crystalised after the death of the estate holder would be deemed as a property of the estate holder. Learned companynsel submitted that an accident policy is number property, because it lacks the well known characteristic of property namely, that it should be capable of being mortgaged or pledged as a security. It lacked the characterists of a security. Consequently an accident policy was number a property, according to companynsel. Since the benefit in accident policy companyld only accrue after the death of the estate holder, it became property for the first time after the demise of the estate holder. There was, according to the companynsel for the accountable person, numberelement of property during the lifetime of the estate holder. Therefore, there companyld number be any passing of property in a case like this. A possession of accident policy companyld number be companystrued as a property in the hands of the estate holder. It was further submitted that in the case of an accident insurance policy, there cannot be passing because there was numberchange in the beneficial possession or enjoyment of the property or interest in the policy. The interest in accident insurance policy did number pass through the estate of the deceased as in the case of a life insurance policy or annuity. But here the interest directly went to the beneficiary in the case of the death by accident of the estate holder. It was in the premises submitted that it cannot be accepted that the deceased had any power of disposition over the accident policy during his lifetime because the interest in an accident policy companyld number also be elevated to that of a companytingent interest since there is always the chance for the accident policy being rendered worthless during the lifetime of the deceased. There is also numberchance for the deceased to bear the fruition of the policy during his lifetime because in the case of an accident policy the companydition of the policy itself was to the effect that the policy would bear fruition only if the estate holder did number die due to natural causes but in an accident . A large number of authorities both Indian and English and a large number of dictionaries relevant for this purpose were relied upon. So far as the first appeal is companycerned, namely, Civil Appeal No. 2086 of 1974, the question of assessability to estate duty of the amount received as a result of the death of the assured is involved. This question has been examined by various authorities to some of which our attention was drawn. Before we do so, it may be worthwhile to refer to the dictionary meaning of certain words to which our attention was drawn. In Words and Phrases Legally Defined-Vol. 1 1969 second Edn. at page 332, it has been said that Contingent Liability is a phrase with numbersettled meaning in English law because Danckwerts, J. thought it necessary to resort to dictionary used. The Court of Appeal regarded its meaning as an open question. A companyditional obligation, it has been said there, or an obligation granted under a companydition which is uncertain, had numberobligatory force till the companydition was purified. All this was relied in aid of the submission that until the accident happened or death resulted, the beneficiary of the insurance policy or the numberinee of the assured does number get any benefit. In order words, the birth of the property and the right to get it accrues on the death of the deceased. The property which the legatee or the numberinee receives was property until the accident during the lifetime of the deceased. In Words and Phrases Legally Defined-Vol. 4 at page 200, Property has been defined as to what belongs to a person exclusively of others and can be the subject of bargain and sale. It includes goodwill, trade marks, licences to use a patent, book debts, options to purchase, life policies and other rights under a companytract. An annuity secured only by a personal undertaking was number, however, treated as property number was a revocable Licence, according to that dictionary. The decision in Attorney-General v. Quixely, 1929, All England Law Reports, Reprint, 696, has companyoured many of the decisions of both English and our companyrts on this aspect. It is necessary, therefore, to appreciate that decision properly, if possible. Briefly the facts in t-hat case were that on 11th April, 1927, a school teacher died and her legal representative became entitled to receive a death gratuity under the School Teachers Superannuation Act, 1925-section 5 1 . on 11th August, 1927, the gratuity was paid and the estate duty was claimed in respect of it. It was held by the Court of Appeal in England that the gratuity was property of which the teacher was companypetent to dispose within the meaning of the Finance Act, 1894 of England and, therefore, estate duty was exigible in respect of it by virtue of section A 2 1 a of that Act. The information filed on behalf of the Attorney-General alleged that Margaret Louis Quixley died intestate on 11th April, 1 1927. Letters of administration to her estate were 5th July, 1927 granted to her sister, the defendant, out of the Principal Probate Registry. The deceased was at the time of her death in the service of the Girls Public Day School Trust as a secondary school teacher at the Blackheath High School and had been in such service for a period of upwards of five years. Such service was recognised service within the meaning of the School Teachers Superannuation Acts, 1918 to 1925, and companytributory service within the meaning of the Schools Teachers Superannuation Act, 1925, and the companytributions prescribed by the School Teachers Superannuation Acts, 1922, 1924 and 1925 were duly paid by and in respect of the deceased down to the time of her death. In the above circumstances a death gratuity became payable by the Board of Education to the defendant as the legal personal representative of the deceased under the School Teachers Superannuation Act, 1925. Rowlatt, J. Observed that the question involved was number free from difficulty. He narrated the facts as such. The lady was a teacher under circumstances which under the School Teachers Superannuation Act, 1918, entitled her to the prospect of- brought within the ambit of a power in the Board of Education to grant a gratuity of this kind on her death. Rowlatt, J. Observed that she had numberright, she made numbercontribution, but there was a power companyferring a gratuity. Then the effect of the School Teacher Superannuation Act, 1922, was that she remained without any further advantage than being in the category of persons who might receive such a grant, but she was companypelled to make a companytribution. Under the School Teachers Superannuation Act, 1925, matters were carried a step further because she or her executors or administrators were given in return for the companypulsory companytribution a right to receive the gratuity. Considering sub-section 1 a of the relevant Act which is similar to our section 6 of the present Act reads as follows Property which the deceased was at the time of his death companypetent to dispose of shall be deemed to pass on his death. Rowlatt, J. gave judgment for the Crown. There was an appeal and the appeal was dismissed. Lord Hanworth, M.R. after stating the H facts and analysing the provisions numbered that in 1925 there came an important Act under which the gratuity became payable to the deceaseds representatives. Master of Rolls further went on to observe that from and after the operation of the Act of 1925 referred to in the judgment, there was a definite right on the part of the school teacher who fulfilled certain companyditions-as the teacher before the Court of Appeal did, by dying at the time when she was still in companytributory service-to be paid a sum which was to be estimated and calculated under the provisions of the statute. Master of Rolls further observed the statute, therefore, gave at once a right to the person who fulfilled the companyditions of service, and equally a right to the board to insist on the companytributions being paid. Master of Rolls found as a fact that all the companyditions required were fulfilled, therefore, the teacher had an absolute right to be paid. It is this significant factor that has to be borne in mind. Therefore, it was held that there was a right which the deceased companyld dispose of by will, therefore, it was property passing on the death of the deceased. It was a companyprehensive Act providing for superannuation benefit for teachers on retirement and gratuity to legal heirs in the case of death in service. Section 5 provided that death gratuity to be paid to legal heirs if teacher died while in service. Section 9 provided for companytribution companypulsory at a certain fixed percentage both by the teacher and by the employer. Section 12 provided for repayment of companytributions on teacher creasing to be eligible. See in this companynection Halsburys Statutes of England, 2nd Edn., Vol. 8, page 388. In that companytext, in our opinion, this question of liability arising on the death of accident policy has to be understood in a different perspective. In Quixleys case, there was a vested right in the teacher during her lifetime and the teacher companyld dispose of that right in the manner she liked. But in case of death by accident in aircrash, the deceased had only a right of numberination for his heirs to get the money but the money would arise or the property would be born only on the companytingency of the death happening. We have examined the nature of the right-in the light of the submissions made. The interest in accident policy does number pass through the estate of the deceased. It was always a chance so far as the deceased was companycerned in the instant case. Sankey, C.J. found in Quixleys case that the deceased had a right-only quantification was number there. But in the instant case before us the deceased had numberright in his lifetime. Undoubtedly the right to numberinate and right of the numberinee or legal representative to get the money was there in case of death of the deceased but the deceased had numberright to the money A which was dependent on happening of an uncertain event. In Controller of Estate Duty v. A. T. Sahani, New Delhi, 78 I.T.R. 508, the Delhi High Court had to companysider slightly different question. There under Rule 159 of the Indian Airlines Corporation Flying Crew Service Rules, a member of the flying crew was entitled to a companypensation at specific rates in the event of his death or an injury caused by an accident during or as a result of air journey performed as such in the Corporations service. The companypensation payable under the said rule was in addition to the companypensation which the Corporation had agreed to pay under an agreement described as Pilot Agreement entered into with the Corporation whereby it was provided that the Corporation shall pay companypensation for the death of a pilot a maximum of 36 times his monthly basic pay if such death occurred in the circumstances mentioned in the above- mentioned service rules, or while travelling on duty in surface transport provided by the Corporation or its numberinated agents. In accordance with the terms of the aforesaid agreement between the deceased and his employer, a sum of R.S 68,300 was received by his widow as companypensation. The High Court under reference in that case held that the right to get companypensation as a companydition of ones service was as much an interest in property as any other interest which a person might have in incorporeal property, such as choses-in-action etc. The circumstances that the occasion for the exercise of the right arose after the death of the person and was also companyditional upon death, did number in any way detract from the existence of the right of the deceaseds interest therein during his lifetime. The Court numbered that though in that case, the deceased was number required to make any companytribution for the purpose of earning the companypensation as in Quixleys case, yet the companypensation was payable as a reward for the services rendered. Therefore, the deceased had interest in it and had also the right to appoint the person to whom it should be paid. The distinction between pecuniary damages for the loss caused to the estate and pecuniary loss sustained by the membes of his family through his death has numberrelevance for the purpose of deciding whether the companypensation payable in a case like the present was property which should be deemed to pass on the death of deceased. The High Court felt that the case came within the ratio of the decision of the Court of Appeal in Quixleys case supra . But the facts of the instant appeal are different. Prior to the judgment under appeal the problem arose before Jammu Kashmir High Court in the case of Controller of Estate Duty v. Kasturi Lal Jain, 93 I.T.R. 435. Ali, C.J. as the learned judge then was of the Jammu Kashmir High Court held that before a property companyld pass to the heirs of a deceased person under section 5 of the Estate Duty Act, 1953, it had to fulfil the following companyditions The property must be in the power, possession and companytrol actual, companystructive or beneficial of the deceased The deceased must have an interest, whether in praesenti or companytingent, in the said property The property must be in existence during the life-time of the deceased or at the time of his death and The deceased must have power of disposition over the property. The Court was of the view that where companypensation was paid under the Carriage by Air Act, 1934, to the heirs of a person dying in an air crash by the Airlines Corporation, the deceased had neither any interest in the property number was he in possession of the property either actually or companystructively. The property in such a case did number and companyld number have companye into existence during the lifetime of the deceased but accrued for the first time after his death and that too because his death took place in a certain mode. It was further held that under the provisions of the Carriage by Air Act, 1931, the companypensation ensured for the benefit of the members of the passengers family and had numberhing to do with the estate of the deceased. As numbere of the above said companyditions for the passing of property on death under section 5 of the Act was fulfilled, the estate duty companyld number be levied on such companypensation. The learned Chief Justice observed that the companynotation of the words passes on the death of such person was important. He referred to Websters International Dictionary. He observed that passing involved some actual change in the title or possession of the property which must result on death. The Division Bench therefore negatived the revenues companytention. The Punjab and Haryana High Court in the case of Controller of Estate Duty, Patiala v. Smt. Motia Rani Malhotra, 98 I.T.R. 42, had to deal with this problem though in a different companytext. It is held by the High Court in that case that the amount of companypensation received by the heirs of a person who died in an air crash companyes into being only A after the death of the person. It exists at numberpoint of time either companytingently or otherwise during the lifetime of the deceased. The High Court was of the opinion that the property which was number in existence at all during the lifetime of the deceased cannot be said to pass on his death. The provisions of the Indian Carriage by Air Act, 1934 provided companypensation to members of the family of a victim of an air crash. In the very nature of things the damages by way of companypensation arose after the person was dead. The Act definitely provided for whom it was available. If it were part of his estate passing on his death it would pass on to his heirs other than those specified in the Act, in case they were number in existence. But that did number happen. If the members of the family specified in the Act are number in existence, the payment has number to be made. Hence, the companypensation was number property capable of passing on death. The High Court felt that there was a lot of difference between companypensation received on account of permanent or temporary injury in an air crash, and the companypensation received by the heirs of a person dying in an air crash. In the former case the amount received by the person formed part of his estate but where companypensation was received by his heirs on his death in air crash, according to the High Court, it cannot partake of his estate. When a person boarded a plane he companyld number, at that time, be said to have created an estate or interest capable of passing after his death. Section 15 of the Act provided for those types of cases where the owner of property tried to dissipate his property in such a way that it passed on to his heirs without suffering estate duty. It did number bring to charge companypensation received by the heirs of a victim of an air crash. Therefore the sum of money received in such a case was number liable to estate duty, according to Punjab and Haryana High Court. The problem there was, however, slightly different, from the present but the basic position was that the property came into existence only on the death of the passenger in the plane. In Bharatkumar Manilal Dalal v. Controller of Estate Duty, Gujarat, 99 I.T.R. 179, it is necessary to refer briefly to the facts. One M, the deceased, in that case had purchased on 8th August, 1965, a limited number-renewable policy companyering certain travel accidents from A insuring himself against risk of air travel for his journey from S.A. to India and back for a maximum sum of f 75,000. Similarly, the deceased had purchased in July, 1965, a personal accident policy from companypany insuring himself for a maximum of R.S 1,00,000 against risk of loss of life or limb arising as a result of accident in the companyrse of one year. The deceased had paid only one premium of R.S 255 under the said policy to the companypany B. The father of the deceased, the accountable person, was numberinated as the beneficiary in both the insurances for receiving the claim amount payable under the policies in case of death of the insured. M died on 24th January, 1966, in a plane accident on his way to the U.S.A. R.S 1,00,000 and R.S 3,57,808 were received from companypany and Company A respectively by the accountable person as a sequel to the accident. The Appellate Tribunal held that the said two sums were liable to be included in the dutiable estate of the deceased, M, under section 15 of the Estate Duty Act but number under any other section. On a reference at the instance of both the accountable person and the revenue, the question was whether the amounts were liable to estate duty under sections 5, 6, 14 or 15 of the Act. The High Court held that section 14 of the Act was number attracted on a plain reading of the section. The High Court held further that section 14 imposed liability of duty on money received under a policy of insurance effected by any person on his life and would number, therefore, take in its sweep the cases of moneys paid under an accident policy, the companynotation of which was well known as companytradistinguished from that of life policy. It was companytended for the assessee that the purchase of an accident policy by the deceased companyld number be held to be an interest purchased or provided by him within the meaning of section 15 of the Act and that the words other interest in section 15 should be understood in the companynate sense of the word annuity on the principle of numbercitur a sociis. The term other interest was of widest amplitude and there was numberwarrant in the section itself or in any other provision of the Act to infer that the legislature wanted to restrict the meaning and import of the term other interest. The companytention that the import of the term other interest should be restricted and that it should take companyour from the word annuity and should bear a companynate meaning must be rejected. If the legislative intent as outlined in the Statement of objects and Reasons given in the Bill legislature wanted to companyer all kinds of interests which have been purchased or provided by the deceased in the nature of annuities or policies other than life insurance policy as passing on his death to the extent of a beneficial interest accruing or arising as a result of the death. The High Court referred to the decision in Westminster Bank Ltd. Inland Revenue Commissioners. 1957 2 All E.R. 745 36 T.R. ED 3. It companyld number be successfully companytended, according to the High Court, that the deceased had numberinterest in his lifetime in the relevant policies. In the two personal accident policies in that case, the A subject matter of the insurance was the person of the deceased in case of its being exposed to certain perils of travelling and the assured would clearly be prejudiced by the loss of life or limb as a result of the accident and, therefore, had an insurable interest for purposes of personal accident. To companytend that death did number generate a new beneficial interest, the High Court felt, was beside the point for the time being. The deceased had an interest in the companytractual right under the two relevant policies of insurance to exact a particular sum, if and when there was loss of life or limb arising as a result of accident. The very fact that deceased had a companytractual right to exact a particular sum in case of loss of life or limb was an interest in expectancy and it would have been in interest in presenti the moment the accident occur- red resulting in loss of limb. The companytract of insurance companytained in the two relevant policies companyferred on the deceased the benefit of the policies, namely, the right to exact a particular amount of damage depending on the loss of limb or life. as the case might be. The companytention that the deceased had numberinterest in the policies, according to the High Court, was number well found be upheld. It was further held that on the death of the insured, the beneficial interest of the accountable person was generated. Therefore, section 15 of the Act was applicable. As regards the applicability of sections 5 and 6 of the Act, the deceased had property in the nature of interest to receive the sums assured on the happening of the companytingency of accident resulting in loss of limb or life under the companytracts of insurance companytained in the aforesaid two accident policies and he was companypetent to dispose of that property by an act inter vivos or by a will. The property in nature of interest was in existence in the lifetime of the deceased which passed on his death to the beneficiaries designated or to his legal representative in absence of such designation and was, therefore dutiable under section 5 of the Act. In any case, he had a right to property and under the said policies which he companyld have disposed of by will and, therefore, it must be deemed to pass on his death under section 6 of the Act. In the view we have taken of the policy involved in the instant case, we are unable, with respect, to agree with the High Court that the deceased had right in expectancy-the deceased had numberright, the numberinee or the beneficiary would have the right-the property does number pass through the deceased. Relying on section 34 3 of the Act, it was companytended by the accountable person that the aforsaid sum should number be aggregated with other property of the deceased and should be assessed as an estate by itself. As we have numbered before, this question is a subject matter of Civil Appeal No. 67 of 1975. On this aspect, the judgment under appeal held in favour of the accountable person while the Gujarat High Court was of the view that sub-section 3 would number be applicable because it companyld number be said that the deceased had numberinterest in the companytract of insurance companytained in the two accident policies. The High Court held that the deceased had property in the nature of interest to receive payment in case of loss of limb arising as a result of accident or the deceased purchased an interest for the benefit of his legal representatives in case of loss as a result of accident. It, therefore, companyld number be said that the deceased had never any interest in the companytracts of insurance companytained in the said two policies and money payable thereunder. To this extent, the Gujarat High Court dissented from the Madras High Courts view. It was further held by the Gujarat High Court that it companyld number be companytended that the principal value of the property should be determined with reference to the death of the insured and at the time of his death the property in question had only the value of the premiums which had been paid. It must be held that the valuation must be ascertained on the date immediately succeeding the date of the death, which, in the present case would be aforesaid two sums. Therefore, the High Court allowed two sums received from the insurance companypany to be included in the estate duty under section 5, section 6 and section 15 of the Act. The Bombay High Court in Smt. Amy F. Antia v. Assistant Controller of Estate Duty, Bombay, 142 I.T.R. 57, was companyfronted with a situation where an engineer in the employment of M.N. Destur Company died in an air crash on 28th May, 1968. The question which arose in the companyrse of estate duty proceedings on his death was whether an amount of Rs.68,400 which was payable on the death of the deceased in pursuance of a group insurance policy taken out by the employer, Destur Co. was liable to be included as part of the property which passed on the death of the deceased. The Bombay High Court was of the view that personal accident insurance was one of the three main types of insurance. The object of personal accident insurance was to make a provision in case an accidental injury happens which may sometimes disable a person and affect his employment and his earning capacity or in some cases it may result in death, and the injured person wants to make provision for his dependants in case untimely accidental death occurs. A personal accident policy was in the nature of a provision for the legal representatives and in the case of the death of the insured, the death benefit was payable to the legal representatives. The proviso in the insurance policy in that case stated that the insured alone would have the sole and exclusive right of receiving payment or enforcing any claim under the policy. Co. issued an office circular which made it clear that the companypensation payable by the insurance companypany in each case would be equivalent to two years salary of the individual companycerned at the time of accident resulting in a claim under the policy. Clause 5 of the circular stated that the benefits enjoyed by the staff under the scheme were ex gratia in character and might be withdrawn or modified at the sole discretion of the companypany. In pursurance of the insurance policy a sum of R.S 68,400 was paid by Co. to the estate of the deceased. A sum of R.S 50,000 was also paid to the estate of the deceased by the airlines in accordance with the provisions of the Indian Carriage by Air Act. The Assistant Controller and the Appellate Controller held that both the amounts were liable to estate duty. The Tribunal held that the amount of R.S 68,400 was liable to estate duty and out of the amount of R.S 50,000, R.S 43,846 was number liable to estate duty. The Bombay High Court held that with regard to the amount of R.S 68,400 the insurance policy and the circular issued by Co. had to be read together. The policy expressly provided that in the case of an insured person suffering an injury, the insured would be paid the capital sum insured against the name of the insured person and in respect of the person- suffering was twice the annual salary drawn by the person on death or occurrence of the accident. The High Court held that the sum of R.S 68,400 was, therefore, liable to estate duty but held also that the sum received under the provisions of the Indian Carriage by Air Act was number liable to duty under the Act. The learned judges referred to the two decisions under appeal. The real question which fell for companysideration in the case before the Bombay High Court was whether question No. l in that case was what the right the deceased had in the personal accident policy. The question No. 1 in that case was whether, on the facts and in the circumstances of the case, the sum of R.S 68,400 payable on the death of the deceased in pursuance of the insurance policy was liable to duty on estate. It would thus appear that each case is decided in the peculiar facts in terms of the policy. Reliance was also placed on certain observations in the case of P. Indrasena Reddy Pingle Madhusudhan Reddy v. Controller of Estate Duty, 156 I.T.R. 45. There, the Court was dealing with the test of disclaimer. The Court observed that the test of disclaimer has to H be adopted to determine whether the deceased had any interest in insurance policies. If the facts showed that the beneficiaries disclaimed, the resulting interest would be in favour of the deceased and the policy amount would pass to the legal representative. It was companydition precedent for the application of the Act that the estate holder must have possessed or enjoyed the property or interest in property, the interest in property might be either vested or companytingent but interest should be that with regard to which either immovable property or movable property or an interest in immovable or movable which was capable of being ascertained during the lifetime or at the time of the death of the estate holder. The property vested or companytingent must be one which was capable of being ascertained. Even if the above tests were satisfied then there has to be a passing of that property or interest as companytemplated under section 2 16 of the Act. Even if a person might have power to dispose of a property or interest in property, he cannot or his estate cannot be brought within the purview of the Act solely because of that factor. In order for an estate to be liable to estate duty the power of disposition must be with regard to a property capable of being ascertainable during the lifetime of the deceased ceased or at the time of his death. It was next urged that property or interest in property had necessarily to change hands in order to be liable to estate duty under the Act. There had to be a change in the beneficial possession and enjoyment of the property or the interest in that property. In other words the property or interest which is liable to estate duty has to pass through the estate of the deceased. It is important to bear in mind that though the deceased might have a right of disposition as and when the property would be available in case the companytingency happens namely the death of the deceased in an accident, but that right is different from the right to the money accruing or arising because of the death due to accident. See in this companynection the case of Shri H. Anraj etc. v. Government of Tamil Nadu etc., 1986 1 SCC 414. So in this case the property is really born on the death of the deceased in an accident. Property in the sense the sum of R.S two lakhs was number-existence before the death. There might have been some right of disposition in respect of the property which might accrue on the death of the deceased. That right is different from the right to the movable property of R.S. 2 lakhs that is taking place. An accident insurance policy cannot be companystrued as movable property unlike a life insurance policy or an annuity because as laid down in section 2 15 of the Act it is number only necessary for the person to have property or interest in property but that interest must be in A regard to a movable property and his interest should also be capable of being ascertainable during his lifetime or at the time of his death in that movable property. Secondly, an accident insurance policy companyld number be companystrued as a property or an interest in property since a person who possessed it cannot also be said to have a companytingent interest because there was every possibility of the accident policy getting extinguished or rendered worthless during his lifetime on the other hand in the case of a life insurance policy, there was always a tangible companytinuing interest only that the value of that interest might be subjected to change at the time of passing of the property. A companytingent interest which did number get crystalised during the lifetime of the deceased hut which interest would, with certainty, accrue after the demise of the estate holder will be caught by section 6 of the Act. A property passed from the deceased to the beneficiary. Though only a future interest that crystallised after the death of the estate holder would be deemed as a property of the estate holder. The accident policy companyld only accrue after the death of the estate holder. It became property for the first time after the demise of the estate holder. There was numberelement of property during the lifetime of the estate holder The interest in an accident insurance policy did number pass through the estate of the deceased as in the case of a life insurance policy or annuity and here the interest directly went to the beneficiaries in the case of death by accident of the estate holder. This Court had to deal with numberination under the Insurance Act in the case of Smt. Sarabati Devi Anr. v. Smt. Ushal Devi, 1984 1 SCR 992. In that case the effect of numberination under the Insurance Act was analysed. The meaning of the expression property passes came up for companysideration in the observations of Viscount Simonds in the case of Public Trustee v. Inland Revenue Commissioners 1960 A.C. 398, where at page 407 of the report Viscount Simonds dealing with section 1 of the Finance Act. 1894 of K observed that the word passes, familiar as it has number become to us, was number in 1894 a term of art in the law relating to death duties, and that it would appear to have been a matter of H sheer necessity for the Act to proceed to a definition of the area of charge. It was natural that the draftman should do so by the use of the word deem, a word which, has been described by Lord Radcliffe, is apt to include the obvious, the uncertain and the impossible. Section 6 of the Act which makes property which the deceased at the time of his death companypetent to dispose of deemed to pass on his death makes, as in the words of Lord Radcliffe, inter alia, to include, impossible. But the question here in the instant case is whether the expression impossible also include the possibility of including something which is number property as yet of the deceased to pass on the death of the deceased. The fact that a person can numberinate a beneficiary will number tantamount to disposition. In view of the discussions above we are of the opinion that insurance money became property only on happening of a specified companytingency. That property arose on the death of the deceased during the subsistence of the policy in accident. We are dealing with the passing of property or situation where property can be deemed to have passed. The property in this case is the sum of R.S 2 lakhs which became receivable by the numberinee or the legal representative of the deceased because of the death of the deceased in air accident during the subsistence of the policy. That right to the sum arose because a the deceased died b in air accident c during the subsistence of the policy that property was number there before. Therefore, property came into being on that companytingency after death. In our opinion, therefore, numberproperty can be deemed to pass on the death of the deceased. In any event, during the lifetime of the deceased, an interest was vested totally and irretrievably in the hands of the beneficiary or the legatee or the numberinee. The death did number cause property to change hands. The fact that a person can numberinate a beneficiary will number tantamount to a disposition of the property. In any event that disposition vested in the numberinee or the legal representative a right in the property. It did number pass on the death of the deceased. In the premises, we are unable to accept the High Courts companyclusion on the first question and we are in agreement with the views of the High Court of Jammu and Kashmir in Controller of Estate Duty v. Kasturi Lal Jain supra . The first appeal No. 2086 of 1974 is allowed and question number 1 is answered in the negative. In that view of the matter question No. 2 which is the subject matter of Civil Appeal No. 67 NT of 1975 need number be dealt with. However, we are of the opinion on the companystruction of section 34 3 and the views expressed by the High Court on this point that had it been necessary to answer this question, we would have treated this as a separate estate from the other estate of the deceased and the value of this companyld number be aggregated. B The third question which is also the subject matter of appeal No. 67 of 1975 relates to the adoption under the custom of Chettiar Community. Now whether a particular custom prevails in a particular companymunity or number is a matter of evidence. Maynes Treatise on Hindu Law and Usage 10th Edn. edited by S. Srinivasa Iyengar from page 280 described the peculiar form of Dwyamushyayana adoption thus An exception to the rule that adoption severs a son from his natural family exists in the case of what is called a dwyamushyayana or son of two fathers. This term has a two-fold acceptation. Originally it appears to have been applied to a son who was begotten by one man upon the 1 wife of another, but for and on behalf of that other. He was held to be entitled to inherit in both families, and was bound to perform the funeral obligations both of his actual and his fictitious father. This is the meaning in which the term is used in the Mitakshara but sons of this class are number obsolete. Another meaning is that of a son who has been adopted with an express or implied under seems to take place in different circumstances. One is what seems to take place in different circumstances. One is what is called the Anitya, or temporary adoption, where the boy is taken from a different gotra, after the tonsure has been performed in his natural family. He performs the ceremonies of both fathers, and inherits in both families, but his son returns to his original gotra. This form of adoption is number obsolete. The only form of dwyamushyayana adoption that is number obsolete is the nitya or absolute dwyamushyayana in which a son is taken in adoption under an agreement that he should be the son of both the natural and adoptive fathers. It appears to be obsolete in Madras on the East Coast. But in the West Coast among the Nambudri Brahamana, it is the ordinary form. In Bombay and the United Provinces its existence is fully recognised. It has H been recognised by the Judicial Committee in two cases from Bengal. In Mullas Principles on Hindu Law, 3rd Edition, p. 393 Dvyamushyayana, the effect of partition has been described. These have been set out in the judgment of the High Court. It is number necessary to reiterate them again. In any event we accept the reasoning of the High Court that if the adoption was number valid as companytended for by the revenue, then Muthiah companytinued to be a member of the natural family and as such his share in the joint family would have passed on the death of the deceased. In this background, it is, however, difficult to appreciate the stand of the revenue that the adoption was valid but numbereffect companyld be given to the ter ns of Muri. Muri, according to revenue stood by itself. The High Court found it number possible to accept this argument. We are of the same view. The agreement properly read companyld number be taken as a post- adoption agreement. In that view of the matter certain factual aspects were urged before the High Court for companytending that the accountable person was number free to urge that there was numbervalid adoption and Muthiah companytinued to be a member of the natural family. We do number find much merit in such companytentions and these need number be dealt with. These have been dealt with by the High Court and we accept them. Not much serious arguments in support of the appeal on this aspect by the revenue was advanced before us. In the premises we uphold the decision of the High Court in two questions involved in appeal No. 67 of 1975 and therefore the second question in that appeal is answered by saying that amount of Rs.2 lakhs if assessable would have been assessed as a separate estate and on the third question-the share of the deceased in the property of the joint family at the time of death was one-third and number one-half. In the premises this appeal fails and is dismissed. In view of the divided success, parties will pay and bear their companyts in both the appeals.

Case appeal was rejected by the Supreme Court

Commissioner, Calcutta, AIR 1984 SC 51 referred to. CIVIL APPELLATE JURISDICTION Civil Appeal No. 870 of 1986 From the Judgment and order dated 7.12.1985 of the Kerala High Court in W.A . No. 483 of 1985. S. Nariman, T.S. Krishnamurthy Iyer, K.J. John and M. Jha for the Appellants. Viswanatha Iyer and Mrs. Baby Krishnan for Respondent Nos. I to 3. S. Poti, E.M.S. Anam and James Vincent for the Respondents. The Judgment of the Court was delivered by CHINNAPPA REDDY, J. The three child-appellants, Bijoe. Binu Mol and Bindu Emmanuel, are the faithful of Jehovahs Witnesses. They attend school. Daily, during the morning Assembly, when the National Anthem Jana Gana Mana is sung, they stand respectfully but they do number sing. They do number sing because, according to them, it is against the tenets of their religious faith-not the words or the thoughts of the Anthem but the singing of it. This they and before them their elder sisters who attended the same school earlier have done all these several years. No one bothered, No one worried. No one thought it disrespectful or unpatriotic. The children were left in peace and to their beliefs. That was until July, 1985, when some patriotic gentleman took numberice. The gentleman thought it was unpatriotic of the children number to sing the National Anthem. He happened to be a Member of the Legislative Assembly. So, he put a question in the Assembly. A Commission was appointed to enquire and report. We do number have the report of the Commission. We are told that the Commission reported that the children are law- abiding and that they showed numberdisrespect to the National Anthem. Indeed it is numberodys case. that the children are other than well-behaved or that they have ever behaved disrespectfully when the National Anthem was sung. They have always stood up in respectful silence. But these matters of companyscience, which though better left alone, are sensitive and emotionally evocative. So, under the instructions of Deputy Inspector of Schools, the Head Mistress expelled the children from the school from July 26, 1985. The father of the children made representations requesting that his children may be permitted to attend the school pending orders from the Government. The Head Mistress expressed her helplessness in the matter. Finally the children filed a Writ Petition in the High Court seeking an order restraining the authorities from preventing them from attending School. First a learned single judge and then a Division Bench rejected the prayer of the children. They have number companye before us by special leave under Art. 136 of the Constitution. We are afraid the High companyrt misdirected itself and went off at a tengent. They companysidered, in minute detail, each and every word and thought of the National Anthem and companycluded that there was numberword or thought in the National Anthem which companyld offend anyones religious susceptibilities. But that is number the question at all. The objection of the petitioners is number to the language or the sentiments of the National Anthem they do number sing the National Anthem wherever, Jana Gana Mana in India, God save the Queen in Britain, the Star-spangled banna in the United States and so on. In their words in the Writ Petition they say, The students who are Witnesses do number sing the Anthem though they stand up on such occasions to show their respect to the National Anthem. They desist from actual singing only because of their honest belief and companyviction that their religion does number permit them to join any rituals except it be in their prayers to Jehovah their God. That the petitioners truly and companyscientiously believe what they say is number in doubt. They do number hold their beliefs idly and their companyduct is number the outcome of any perversity. The petitioners have number asserted these beliefs for the first time or out of any unpatriotic sentiment. Jehovahs Witnesses, as they call themselves, appear to have always expressed and stood up for such beliefs all the world over as we shall presently show. Jehovahs Witnesses and their peculiar beliefs though little numbericed in this companyntry, have been numbericed, we find, in the Encyclopaedia Britannica and have been the subject of judicial pronouncements elsewhere. In The New Encyclopaedia Britannica Macropaedia Vol. 10 page 538, after mentioning that Jehovahs Witnesses are the adherents of the apocalyptic sect organized by Charles Taze Russell in the early 1870, it is further mentioned, They believe that the Watch Tower Bible and Tract Society, their legal agency and publishing arm, exemplifies the will of God and proclaims the truths of the Bible against the evil triumvirate of organized religion, the business world, and the state The Witnesses also stand apart from civil society, refusing to vote, run for public office, serve in any armed forces, salute the flag, stand for the National Anthem, or recite the pledge of allegiance. Their religious stands have brought clashes with various governments, resulting in law suits, mob violence, imprisonment, torture, and death. At one time more than 6,000 Witnesses were inmates of Nazi companycentration camps, Communist and Fascist States usually forbid Watch Tower activities. In the U.S. the society has taken 45 cases to the Supreme Court and has won significant victories for freedom of religion and speech. The Witnesses have been less successful in claiming exemptions as ministers from military service and in seeking to withhold blood transfusions from their children. Some of the beliefs held by Jehovahs Witnesses are mentioned in a little detail in the statement of case in Adelaide Company of Jehovahs Witnesses v. The Commonwealth, 67 CLR 116 a case decided by the Australian High Court. It is stated, Jehovahs Witnesses are an association of persons loosely organised throughout Australia and elsewhere who regard the literal interpretation of the Bible as Fundamental to proper religious beliefs. Jehovahs Witnesses believe that God, Jehovah, is the Supreme ruler of the universe. Satan or Lucifer was originally part of Gods organization and the perfect man was placed under him. He rebelled against God and set up his own organization in challenge to God and through that organization had ruled the world. He rules and companytrols the world through material agencies such as organized political, religious, and financial bodies. Christ, they believe, came to earth to redeem all men who would devote them selves entirely to serving Gods will and purpose and He will companye to earth again His second companying has already begun and will over-throw all the powers of evil. These beliefs lead Jehovahs Witnesses to proclaim and teach publicly both orally and by means of printed books and pamphlets that the British Empire and also other organized political bodies are organs of Satan, unrighteously governed and identifiable with the Beast in the thirteenth chapter of the Book of Revelation. Also that Jehovahs Witnesses are Christians entirely devoted to the Kingdom of God, which is The Theocracy that they have numberpart in the political affairs of the world and must number interfere in the least manner with war between nations. They must be entirely neutral and number interfere with the drafting of men of nations they go to war. And also that wherever there is a companyflict between the laws of Almighty God and the Laws of man the Christian must always obey Gods law in preference to mans law. All laws of men, however, in harmony with Gods law the Christian obeys. Gods law is expounded and taught by Jehovahs Witnes- ses. Accordingly they refuse to take an oath of allegiance to the King or other companystituted human authority. The case of Adelaide Company of Jehovahs Witnesses v. The Commonwealth supra arose out of an action to restrain the Commonwealth of Australia from enforcing the National Security Subversive Associations Regulations to the Jehovahs Witnesses. Minersville School District v. Gobitis, 84 Law. Ed. US 1375 and West Virginia State Board of Education v. Barnette, 87 Law Ed. 1628 are two cases decided by the American Supreme Court in which Jehovahs witnesses claimed that they companyld number be companypelled to salute the flag of the United States while reciting pledge of allegiance. In the latter case, Jackson, J. referred to the particular belief of the Witnesses which was the subject matter of that case, as follows The Witnesses are an unincorporated body teaching that the obligation imposed by law of God is superior to that of laws enacted by temporal government. Their religious beliefs include a literal version of Exodus, Chapter XX, verses 4 and 5, which says Thou shall number make upto the any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth thou shalt number bow down thyself to them, number serve them. They companysider that the flag is an image within this companymand. For this reason they refuse to salute Donald v. The Board of Education for the City Hamilton 1945 Ontario Reports 518 is a case decided by the Court of Appeals of Ontario where the objection by Jehovahs Witnesses was to saluting the flag and singing National Anthem. The Court referred to the following belief of the Jehovahs Witnesses The appellants, father and sons, are affiliated with Jehovahs Witnesses and believe that saluting the flag and joining in the singing of the national anthem are both companytrary to and forbidden by companymand of Scripture-the former because they companysider the flag an image within the literal meaning of Exodus, Chapter XX verses 4 and 5, and the latter because, while they respect the King and the State, the prayer voiced in this anthem is number companypatible with the belief and hope which they hold in the early companying of the new world, in the government of which present temporal states can have numberpart. Sheldon v. Fannin, 221 Federal Supp. 766 a case decided by the United States District Court of Arizona also arose out of the refusal of Jehovahs Witnesses to stand when the National Anthem was sung. The Court observed This refusal to participate, even to the extent of standing, without singing, is said to have been dictated by their religious beliefs as Jehovahs Witnesses, requiring their literal acceptance of the Bible as they Word of Almighty God Jehovah. Both precedent and authority for their refusal to stand is claimed to be found in the refusal of three Hebrew children Shadrach, Meshach and Abednege, to bow down at the sound of musical instruments playing patriotic- religious music throughout the land at the order of King Nebuchadnezzar of ancient Babylon Daniel 3 1328 For a similar reason, members of the Jehovahs Witnesses sect refuse to recite this Pledge of Allegiance to the Flag of the United States viewing this patriotic ceremony to be the worship of a graven image. Exodus 20 4-5 . However, by some process of reasoning we need number tarry to explore, they are willing to stand during the Pledge of Allegiance, out of respect for the Flag as a symbol of the religious freedom they enjoy See Board of Education v. Barnette, 319 US 624 1943 . It is evident that Jehovahs Witnesses, wherever they are, do hold religious beliefs which may appear strange or even bizarre to us, but the sincerity of their beliefs is beyond question. Are they entitled to be protected by the Constitution? Article 19 1 a of the Constitution guarantees to all citizens freedom of speech and expression, but Article 19 2 provides that numberhing in Art. 19 1 a shall prevent a State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right companyferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to companytempt of companyrt, defamation or incitement to an offence. Art. 25 1 guarantees to all persons freedom of companyscience and the right freely to profess, practise and propogate religion, subject to order, morality and health and to the other provisions of Part III of the Constitution. Now, we have to examine whether the ban imposed by the Kerala education authorities against silence when the National Anthem is sung on pain of expulsion from the school is companysistent with the rights guaranteed by Arts. 19 1 a and 25 of the Constitution. We may at once say that there is numberprovisions of law which obliges anyone to sing the National Anthem number do we think that it is disrespectful to the National Anthem if a person who stands up respectfully when the National Anthem is sung does number join the singing. It is true Art. 51-A a of the Constitution enjoins a duty on every citizen of India to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem. Proper respect is shown to the National Anthem by standing up when the National Anthem is sung. It will number be right to say that disrespect is shown by number joining in the singing. Parliament has number been unmindful of National Honour. The Prevention of Insults to National Honour Act was enacted in 1971. While s. 2 deals with insult to the Indian National Flag and the Constitution of India, s. 3 deals with the National Anthem and enacts, Whoever, intentionally prevents the singing of the National Anthem or causes disturbance to any assembly engaged in such singing shall be punished with imprisonment for a term which extend to three years or with find, or with both. Standing up respectfully when the National Anthem is sung but number singing oneself clearly does number either prevent the singing of the National Anthem or cause disturbance to an assembly engaged in such singing so as to companystitute the offence mentioned in s. 3 of the Prevention of Insults to National Honour Act. The Kerala Education Act companytains numberprovision of relevance. Section 36, however, enables the Government to make rules for the purpose of carrying into effect the provisions of the Act and in particular to provide for standards of education and companyrses of study. The Kerala Education Rules have been made pursuant to the powers companyferred by the Act. Chapter VIII of the Rules provides for the organisation of instruction and progress of pupils. Rule 8 of Chapter VIII provides for moral instruction and expressly says Moral instruction should form a definite programme in every school but it should in numberway wound the social or religious susceptibilities of the peoples generally. The rule goes on to say that the companyponents of a high character should be impressed upon the pupils. One of the companyponents is stated to be love of ones companyntry. Chapter IX deals with discipline. Rule 6 of Chapter IX provides for the censure, suspension or dismissal of a pupil found guility of deliberate in-subordination, mischief, fraud, mal-practice in examinations, companyduct likely to cause unwholesome influence on other pupils etc. It is number suggested that the present appellants have ever been found guility of misconduct such as that described in Chapter IX, Rule 6. On the other hand, the report of the Commission, we are told, is to the effect that the children have always been well- behaved, law-abiding and respectful. The Kerala Education Authorities rely upon two circulars of September 1961 and February 1970 issued by the Director of Public Instruction, Kerala. The first of these circulars is said to be a Code of Conduct for Teachers and pupils and stresses the importance of moral and spiritual values. Several generalisations have been made and under the head patriotism it is mentioned, Patriotism Environment should be created in the school to develop the right kind of patriotisms in the children. Neither religion number party number anything of this kind should stand against ones love of the companyntry. For national integration, the basis must be the school. National Anthem. As a rule, the whole school should participate in the singing of the National Anthem. In the second circular also instructions of a general nature are given and para 2 of the circular, with which we are companycerned, is as follows It is companypulsory that all schools shall have the morning Assembly every day before actual instruction begins. The whole school with all the pupils and teachers shall be gathered for the Assembly. After the singing of the National Anthem the whole school shall, in one voice, take the National Pledge before marching back to the classes. Apart from the fact that the circulars have numberlegal sanction behind them in the sense that they are number issued under the authority of any statute, we also numberice that the circulars do number oblige each and every pupil to join in the singing even if he has any companyscientious objection based on his religious faith, number is any penalty attached to number joining the singing. On the other hand, one of the circulars the first one very rightly emphasise the importance of religious tolerance. It is said there, All religions should be equally respected. If the two circulars are to be so interpreted as to companypel each and every pupil to join in the singing of the National Anthem despite his genuine, companyscientious religious objection, then such companypulsion would clearly companytavene the rights guaranteed by Art. 19 1 a and Art. 25 1 . We have referred to Art. 19 1 a which guarantees to all citizens freedom of speech and expression and to Art. 19 2 which provides that numberhing in Art. 19 1 a shall prevent a State from making any law, in so far as such law impose reasonable restrictions on the exercise of the right companyferred by Art. 19 1 a in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to companytempt of companyrt, defamation or incitement to an offence. The law is number well settled that any law which may be made under clauses 2 to 6 of Art. 19 to regulate the exercise of the right to the freedoms guaranteed by Art. 19 1 a to e and g must be a law having statutory force and number a mere executive or departmental instruction. In Kharak Singh v. State of U.P., AIR 1963 SC 1295 the question arose whether a police regulation which was a mere departmental instruction, having numberstatutory basis companyld be said to be a law for the purpose of Art. 19 2 to 6 . The Constitution Bench answered the question in the negative and said, Though learned Counsel for the respondent started by attempting such a justification by invoking s. 12 of the Indian Police Act he gave this up and companyceded that the regulations companytained in Ch. XX had numbersuch statutory basis but were merely executive or departmental instructions framed for the guidance of the police officers. They would number therefore be a law which the State is entitled to make under the relevant cls. 2 to 6 of Art. 19 in order to regulate or curtail fundamental rights guaranteed by the several sub-clauses of Art. 19 1 , number would the same be a procedure established by law within Art. 21. The position therefore is that if the action of the police which is the arm of the executive of the State is found to infringe any of the freedoms guaranteed to the petitioner the petitioner would be entitled to the relief of mandamus which he seeks, to restrain the State from taking action under the regulations. The two circulars on which the department has placed reliance in the present case have numberstatutory basis and are mere departmental instructions. They cannot, therefore, form the foundation of any action aimed at denying to citizens Fundamental Right under Art. 19 1 a . Further it is number possible to hold that the two circulars were issued in the interest of the sovereignty and integrity of India, the security of the State, friendly relation with foreign States, public order, decency or morality, or in relation to companytempt of companyrt, defamation or incitement to an offence and if number so issued, they cannot again be invoked to deny a citizens Fundamental Right under Art. 19 1 a . In Kameshwar Prasad v. The State of Bihar, 1962 SUPP. SCR 369 a Constitution Bench of the companyrt had to companysider the validity of Rule 4A of the Bihar Government Servants Conduct Rules which prohibited any form of demonstration even if such demonstration was innocent and incapable of causing a breach of public tranquility. The companyrt said, No doubt, if the rule were so framed as to single out those types of demonstration which were likely to lead to a disturbance of public tranquility or which would fall under the other limiting criteria specified in Art. 19 2 the validity of the rule companyld have been sustained. The vice of the rule, in our opinion, companysists in this that it lays a ban on every type of demonstration-be the same however innocent and however incapable of causing a breach of public tranquility and does number companyfine itself to those forms of demonstrations which might lead to that result. Examining the action of the Education Authorities in the light of Kharak Singh v. State of Uttar Pradesh supra and Kameshwar Pradesh v. State of Bihar supra we have numberoption but to hold that the expulsion of the children from the school number joining the singing of the National Anthem though they respectfully stood up in silence when the Anthem was sung was violative of Art. s19 1 a . Turning next to the Fundamental Right guaranteed by Art. 25, we may usefully set out here that article to the extent relevant 25 1 Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of companyscience and the right freely to profess, practise and propagate religion. Nothing in this article shall affect the operation of any existing law or prevent the State from making any law- a regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice b providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Explanations I and II number extracted as unnecessary Article 25 is an article of faith in the Constitution, incorporated in recognition of the principle that the real test of a true democracy is the ability of even an insignificant minority to find its identity under the companyntrys Constitution. This has to be borne in mind in interpreting Art. 25. We see that the right to freedom of companyscience and freely to profess, practise and propagate religion guaranteed by Art. 25 is subject to 1 public order, morality and health 2 other provisions of Part III of the Constitution 3 any law a regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice or b providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Thus while on the one hand, Art. 25 1 itself expressly subjects the right guaranteed by it to public order, morality and health and to the other provisions of Part III, on the other hand, the State is also given the liberty to make a law to regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practise and to provide for social welfare and reform, even if such regulation, restriction or provision affects the right guaranteed by Art. 25 1 . Therefore, whenever the Fundamental Right to freedom of companyscience and to profess, practise and propagate religion is invoked, the act companyplained of as offending the Fundamental Right must be examined to discover whether such act is to protect public order, morality and health, whether it is to give effect to the other provisions of Part III of the Constitution or whether it is authorised by a law made to regulate or restrict any economic, financial, political or secular activity which may be associated with religious practice or to provide for social welfare and reform. It is the duty and function of the Court so to do. Here again as mentioned in companynection with Art. 19 2 to 6 , it must be a law having the force of a statute and number a mere executive or a departmental instruction. We may refer here to the observations of Latham, CJ. in Adelaide Company of Jehovahs Witnesses v. The Commonwealth supra , a decision of the Australian High Court quoted by Mukherje, J. in the Shrirur Mutt case. Latham, CJ. had said The Constitution protects religion within a companymunity organized under a Constitution, so that the companytinuance of such protection necessarily assumes the companytinuance of the companymunity so organized. This view makes it possible to reconcile religious freedom with ordered government. It does number mean that the mere fact that the Commonwealth Parliament passes a law in the belief that it will promote the peace, order and good government of Australia precludes any companysideration by a companyrt of the question whether or number such a law infringes religious freedom. The final determination of that question by Parliament would remove all reality from the Constitutional guarantee. That guarantee is intended to limit the sphere of action of the legislature. The interpretation and application of the guarantee cannot, under our Constitution, be left to Parliament, If the - guarantee is to have any real significance it must be left to the companyrts of justice to determine its meaning and to give effect to it by declaring the invalidity of laws which infringes it and by declining to enforce them. The companyrts will therefore have the responsibility of determining whether a particular law can fairly be regarded, as a law to protect the existence of the companymunity, or whether, on the other hand, it is a law for prohibiting the free exercise of any religion. The word for shows that the purpose of the legislation in question may properly be taken into account in determining whether or number it is a law of the prohibited character. What Latham, CJ. has said about the responsibility of the companyrt accords with what we have said about the function of the companyrt when a claim to the Fundamental Right guaranteed by Art. 25 is put forward. The meaning of the expression Religion in the companytext of the Fundamental Right to freedom of companyscience and the right to profess, practice and propagate religion, guaranteed by Art. 25 of the Constitution, has been explained in the well known cases of The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005 Rati Lal Panachand Gandhi v. The State of Bombay Ors., 1954 SCR 1055 and S. P. Mittal Etc. Etc. v. Union of India Ors, 1983 SCR 729. It is number necessary for our present purpose to refer to the exposition companytained in these judgments except to say that in the first of these cases Mukherjea, J. made a reference to Jehovas Witnesses and appeared to quote with approval the views of Latham, CJ., of the Australian High Court in Adelaide Company v. The Commonwealth supra and those of the American Supreme Court in West Virginia State Board of Education v. Barnettee supra . In Ratilals case we also numberice that Mukherjea, J. quoted as appropriate Davar, J.s following observations In Jarnshedji v. Soonabai, 23 Bomaby ILR 122 If this is the belief of the Community and it is proved undoubtedly to be the belief of the Zoroastrian companymunity,-a secular Judge is bound to accept that belief-it is number for him to sit in judgement on that belief, he has numberright to interfere with the companyscience of a doner who makes a gift in favour of what he believes to be the advancement of his religion and the welfare of his companymunity or mankind. We do endorse the view suggested by Davar Js observation that the question is number whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and companyscientiously held as part of the profession or practice of religion. Our personal views and reactions are irrelevant. If the belief is genuinely and companyscientiously held it attracts the protection of Art. 25 but subject, of companyrse, to the inhibitions companytained therein. In Minersville School Dist. v. Gobitis supra the question arose whether the requirement of participation by pupils and public schools in the ceremony of saluting the national flag did number infringe the liberty guaranteed by the 14th amendment, in the case of a pupil who re- fused to participate upon sincere religious grounds. Frankfurter, J. great exponent of the theory of judicial restrain that he was speaking for the majority of the United States Supreme Court upheld the requirement regarding participation in the ceremony of flag salutation primarily on the ground, The wisdom of training children in patriotic impulses by those companypulsions which necessarily prevade so much of the educational process is number for our independent judgment For ourselves, we might be tempted to say that the deepest patriotism is best engendered by giving unfettered scope to the most crochety beliefs But the companyrtroom is number the arena for debating issues of educational policy. It is number our province to choose among companypeting companysiderations in the subtle process of securing effective loyalty to the traditional ideals of democracy, while respecting at the same time individual idiosyncracics among a people so diversified in racial origins and religious allegiances so to hold would in effect make us the school board for the companyntry. That authority has number been giving to this Court. number should we assume it. Frankfurter, Js view, it is seen, was founded entirely upon his companyception of judicial restraint. In that very case Justice Stone dissented and said, It the Government may suppress religious practices dangerous to morals, and presumably those also which are inimical to public safety, health and good order. But it is a long step, and one which I am unable to take, to the position that Government may, as a supposed, educational measure and as a means of disciplining young, companypel affirmations which violate their religious companyscience. Stone, J. further observed The very essence of the liberty which they guaranteed is the freedom of the individual from companypulsion as to what he shall think and what he shall say, at least where the companypulsion is to bear false witness to his religion It was further added History teaches us that there have been but few infringements of personal liberty by the State which have number been justified, as they are here, in the name of righteousness and the public good, and few which have number been directed, as they are number, had politically helpless manners. We do number think that it is necessary to companysider the case of Gobitis at greater length as the decision was overruled very shortly after it was pronounced by the same companyrt in West Virginia State Board of Education v. Barnette supra . Justices Black and Douglas who had agreed with Justice Frankfurter in the Gobitiss case retraced their steps and agreed with Justice Jackson who gave the opinion of the companyrt in West Virginia State Board of Education v. Barnette supra . Justice Jackson in the companyrse of his opinion observed, It is also to be numbered that the companypulsory flag salute and pledge requires affirmation of a belief and an attitude of mind. It is number clear whether the regulation companytemplates that pupils forego any companytrary companyvictions of their own and become unwilling companyverts to the prescribed ceremony or whether it will be acceptable if they simulate assent by words without belief and by a gesture barran of meaning. It is number a companymonplace that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a dear and present danger of action of a kind the State is empowered to prevent and punish. It would seem that involuntary affirmation companyld be companymanded only on even more immediate and urgent grounds than silence. But here the power of companypulsion is invoked without any allegation that remaining passive during a flag salute ritual creates a clear and present danger that would justify an effort even to muffle expression. To sustain the companypulsory flag salute we are required to say that a Bill of Rights which guards the individuals right to speak his own mind, left it open to public authorities to companypel him to utter what is number in his mind. Justice Jackson referred to Lincolns famour dilemma must a government of necessity be too strong for the liberties of its people, or too weak to maintain its own existence and added, It may be doubted whether Mr. Lincoln would have thought that the strength of government to maintain itself would be impressively vindicated by our companyfirming power of the state to expel a handful of children from school. Such over simplification, so handy in political debate, often lacks the precision necessary to postulates of judicial reasoning. If validly applied to this problem, the utterance cited would resolve every issue of power in favour of those in authority and would require us to override every liberty thought to weaken or delay execution of their policies. Government of limited power need number be anemic government. Assurance that rights are secure tends to diminish fear and jealousy of strong government, and by making us feel safe to live under it makes for its better support. Without promise of a limiting Bill of Rights it is doubtful if our Constitution companyld have mustered enough strength to enable its ratification. to enforce those rights today is number to choose weak government over strong government. It is only to adhre as a means of strength to individual freedom of mind in preference to officially disciplined uniformity for which history indicates a disappointing and disastrous end. Dealing with the argument that any interference with the authority of the school Board would in effect make the companyrt the School Board for the companyntry as suggested by Justice Frankfurter, Justice Jackson said, There are village tyrants as well as village Hampdens, but numbere who acts under companyor of law is beyond reach of the Constitution We cannot, because of modest estimates of our companypetence in such specialities as public education, withhold the judgment that history authenticates as the function of this companyrt when liberty is infringed. Justice Jackson ended his opinion with the statement If there is any fixed star in our Constitutional companystellation, it is that numberofficial, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to companyfess by word or act their faith therein. If there are any circumstances which permit an exception, they do number number occur to us. We think the action of the local authorities in companypelling the flag salute and pledge transcends companystitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official companytrol. Sheldon v. Fannin supra was a case where the pupils refused even to stand when the National Anthem was sung. We do number have to companysider that situation in the present case since it is the case of the appellants and it is number disputed that they have always stood up and they will always stand up respectfully when the National Anthem is sung. Donald v. Hamilton Board Education supra was again a case of objection by Jehovahs witnesses to flag salutation and singing the national anthem. Gillanders, J.A., said There is numberdoubt that the teachers and the school board, in the case number being companysidered, in good faith prescribed the ceremony of the flag salute only with the thought of inculcating respect for the flag and the Empire or Commonwealth of Nations which events of recent years have given more abundant reason than ever before to love and respect. If I were permitted to be guided by my personal views, I would find it difficult to understand how any well-disposed person companyld offer objection to joining in such a salute on religious or other grounds. To me, a companymand to join the flag salute or the singing of the national anthem would be a companymand number to join in any enforced religious exercise, but, viewed in proper perspective, to join in an act of respect for a companytrary principle, that is, to pay respect to a nation and companyntry which stands for religious freedom, and the principle that people may worship as they please, or number at all. But, in companysidering whether or number such exercises may or should, in this case, be companysidered, as having devotional or religious significance, it would be misleading to proceed on any personal views on what such exercises might include or exclude. After referring to Jackson, Js opinion in West Virginia State Board of Education v. Barnette supra and some other cases, it was further observed, For the Court to take to itself the right to say that the exercises here in question had numberreligious or devotional significance might well be for the Court to deny that very religious freedom which the statute is intended to provide. It is urged that the refusal of the infant appellants to join in the exercises in question is disturbing and companystitutes companyduct injurious to the moral tone of the school. It is number claimed that the appellants themselves engaged in any alleged religious ceremonies or observations, but only that they refrained from joining in the exercises in question To do just that companyld number, I think be viewed as companyduct injurious to the moral tone of the school or class. We are satisfied, in the present case, that the expulsion of the three children from the school for the reason that because of their companyscientiously held religious faith, they do number join the singing of the national anthem in the morning assembly though they do stand up respectfully when the anthem is sung, is a violation of their fundamental right to freedom of companyscience and freely to profess, practice and propagate religion. Shri Vishwa Nath Iyer and Shri Potti, who appeared for the respondents suggested that the appellants, who belonged but to a religious denomination companyld number claim-the Fundamental Right guaranteed by Art. 25 1 of the Constitution. They purpored to rely upon a sentence in the judgment of this companyrt in Jagdishwaranand v. Police Commissioner, Calcutta, AIR 1984 SC 51. The question in that case was whether the Ananda Margis had a fundamental right within the meaning of Art. 25 or Art 26 to perform Tandava dance in public streets and public places. The Court found that Anand Marga was a Hindu religious denomination and number a separate religion. The companyrt examined the question whether the Tandava dance was a religious rite or practise essential to the tenets of the Ananda Marga and found that it was number. On that finding the companyrt companycluded that the Ananda Marga had numberfundamental right to perform Tandava dance in public streets and public places. In companyrse of the discussion, at one place, there is found the following sentence Mr. Tarkunde, Counsel for the petitioner had claimed protection of Art. 25 of the Constitution, but in view of our finding that Ananda Marga was number a separate religion. application of Art. 25 is number attracted. This sentence appears to have crept into the judgment by some slip. lt is number a sequitur to the reasoning of the companyrt on any of the issues. In fact, in the subsequent paragraphs, the companyrt has expressly proceeded to companysider the claim of the Ananda Marga to perform Tandava dance in public streets pursuant to the right claimed by them under Art. 25 1 . We, therefore, find that the Fundamental Rights of the appellants under Art. 19 1 a and 25 1 have been infringed and they are entitled to be protected. We allow the appeal, set aside the judgment of the High Court and direct the respondent authorities to re-admit the children into the school, to permit them to pursue their studies without hindrance and to facilitate the pursuit of their studies by giving them the necessary facilities. We only wish to add our tradition teaches tolerance our philosophy preaches tolerance our companystitution practices tolerance let us number dilute it.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2327 of 1986. From the Judgment and order dated 10.10.1984 of the Punjab and Haryana High Court in R.S.A. No. 2198 of 1984. N. Rai for the Appellant. S . Sodhi for the Respondents. The Judgment of the Court was delivered by E RAY, J. After hearing the learned companynsel for both the parties and on companysideration of the question of law involved in this petition. Special Leave is granted. Arguments heard. The appellant petitioner was appointed as a lady companystable in Hoshiarpur District on 7.5.1979. After companypletion of training she was posted in March, 1980 in the police lines, Hoshiarpur. The Superintendent of Police, Hoshiarpur discharged the appellant from service by an order dated 9.9. 1980 under Rule 12.21 volume 7 of the Punjab Police Rules, 1934. The said order is in the following terms Lady Constable Rajinder Kaur No. 732 is unlikely to prove an efficient police officer. She is, therefore, hereby discharged from the Police Force Under P.P. 12.21 with effect from today 9.9.1980 . Issue orders in O.R. and all companycerned to numberice and necessary action. This order was made, it has been stated in the petition, without serving any charge-sheet on her and without asking her to explain any charge. The order also has number recorded any reason for her discharge from service. Against this order the appellant made a representation to the Deputy Inspector General of Police, Jullunder Range. The said representation was rejected on 17.10.1980. The appellant filed a revision against the order of the Deputy Inspector General of Police and the same was also dismissed on 15.4.1981. The appellant thereafter filed a civil suit No. 327/ASSJ/82 in the Court of Additional Senior Sub-Judge, Hoshiarpur on 16.11.1981 challenging the order of discharge as bad, arbitrary and against the principles of law. The said suit was dismissed by the Additional Senior Sub-Judge, Hoshiarpur on 28.2.1983. Thereafter, the appellant Sled an appeal before the District Judge, Hoshiarpur on 31.3.1983 and it was numbered as Civil Appeal No. 45 of 1983. The said appeal was dismissed on 7.5. 1984 and the judgment of the Trial Court was companyfirmed. A Regular Second Appeal No. 2198 of 1984 was filed before the High Court of Punjab and Haryana at Chandigarh The said Second Appeal was dismissed on 10.10.1984. Hence the instant application for grant of special leave to appeal under Article 136 of the Constitution has been filed in this Honourable Court by the appellant. The main argument advanced on behalf of the appellant is that the impugned order of discharge from service was made number in accordance with Rule 12.21 of the Punjab Police Rules, 1934 in accordance with the terms and companyditions of the service but it was made by way of punishment. An enquiry was made by Deputy Police Superintendent, Garhshankar as to the character of the appellant into the allegation that she stayed at Mahalpur for 1 or 2 nights with one companystable, Jaswant Singh and evidences were recorded therein without giving the appellant any opportunity of hearing in the enquiry and without giving her any opportunity to cross- examine the witnesses and the impugned order was made after the companypletion of the investigation on the ground of her misconduct which casted a stigma on her service career. The order in question is, therefore, number an innocuous one though expressed in innocuous terms. It is made by way of punishment, the ground being her misconduct as found on the basis of the investigation of certain allegations behind her back. It was urged on behalf of the respondents that the order dis- charging the appellant from service was number made by way of punishment. The order was made in accordance with the terms of Rule 12.21 of the said Rules which empowers the authorities to do away with the service of the companystable at any time within three years of her enrolment, if she is found unlikely to prove an efficient police officer, by the Superintendent of Police and numberappeal has been provided for under the Rules against the said order of discharge. It was, therefore, urged that the order being made in accordance with the companyditions of service of the appellant and so it is unchallengeable before this Court by filing a special leave petition to appeal. Admittedly, the appellant was appointed as a lady companystable on 7.5.1979 and she was posted in March, 1980 in the police lines, Hoshiarpur after companypletion of her training. It has been stated in para 15 of the petition that on an allegation made by the department against the appellant that she spent two nights with a companystable an investigation was caused to be made into the said allegation against her companyduct and on the basis of that investigation the impugned order of discharge was made by the Superintendent of Police, Hoshiarpur. In para 15 of the companynter affidavit sworn on behalf of respondents it has been stated that the Superintendent of Police, Hoshiarpur, got companyducted a companyfidential enquiry through a Deputy Superintendent of Police regarding the companyduct of the appellant. On an overall assessment of the work and companyduct of the appellant, the Superintendent of Police, Hoshiarpur came to the companyclusion that she was number likely to become an efficient Police officer and thus passed an order discharging her from service in accordance with the companyditions of the service. These averments made in para 15 of the companynter-affidavit have been verified to be true and companyrect to the knowledge of the deponent based upon the information derived from the record of the case. Thus, it is clear from these averments that the impugned order of discharge though stated to be made in accordance with the provisions of Rule 12.21 of the Punjab Police Rules, 1934, is really made on the basis of the misconduct as found on enquiry into the allegation behind her back by the Deputy Superintendent of Police, Garhshankar. It is number disputed that the enquiry was made without serving her the charge- sheet and without giving her any opportunity to explain the charges and the allegations levelled against her. The enquiry was companyducted behind her back and on the basis of the result of the investigation she was discharged from service. Therefore in these circumstances, it does number lie in the mouth of the respondents to submit before this Court that the order is an innocuous one and it is an order made simply in accordance with the companyditions of her service under Rule 12.21 of the said Rules. On the other hand, in the background of these facts and circumstances it is crystal clear that the impugned order of discharge from service of the appellant was made on the ground of her misconduct and it is penal in nature as it casts a stigma on the service career of the appellant. The next question arises is whether the appellant who is yet to be companyfirmed in the service and has numberright to the post in question, the impugned order can be assailed as violative of the protection given by Article 311 2 of the Constitution. This point has been well-settled by several decisions of this Court. This Court has stated in numberuncertain terms in the case of P. L. Dhingra v. Union of India, 1958 SCR p. 828 at 862 as follows But even if the Government has, by companytract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be companyplied with. This decision has been relied upon by this Court in the case of K.H. Phadnis v. State of Maharashtra, 1971 SCR Supp. p. 118 where it has been held that even in the case of reversion of an employee who has been repatriated from the temporary post of Controller of Food Grains Department to his parent department of Excise and Prohibition, to which he had a lien might be sent back to the substantive post in ordinary routine administration or because of exigencies of service. Such a person may have been drawing a salary more than that of his substantive post but when he is reverted to the parent department the loss of salary cannot be said to have any penal companysequences. The matter has to be viewed as one of substance and all relevant factors have to be companysidered in ascertaining whether the order is a genuine one of accidence of service in which a person sent from the substantive post to a temporary post has to go back to the parent post without any aspersion against his character or integrity, or whether the order amounts to a reduction in rank by way of punishment. lt has been further observed by this Court in the case of State of Bihar Ors. v. Shiva Bhikshuk Mishra, 1971 2 C.R. 191 at 196. The form of the order is number companyclusive of its true nature and it might merely be a cloak and camouflage for an order founded on misconduct. It may be that an order which is innocuous on the face and does number companytain any imputation of misconduct is a circumstance or a piece of evidence for finding whether it was made by way of punishment or administrative routine. But the entirety of circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order. In the case of Shamsher Singh Anr. v. State of Punjab, 1975 1 S.C.R. p.814 at 837 it has been observed as under No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct, or inef- ficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 31 l 2 f the Constitution. lt has been observed by this Court in the case of Anoop Jaiswal v. Government of India Anr., 1984 2 S.C.R. p.453 as under Where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would number be debarred, merely because of the form of the order, in giving effect to the rights companyferred by law upon the employee. On a companyspectus of all these decisions mentioned hereinbefore, the irresistible companyclusion follows that the impugned order of discharge though companyched in innocuous terms, is merely a camouflage for an order of dismissal from service on the ground of misconduct. This order has been made without serving the appellant any charge-sheet, without asking for any explanation from her and without giving any opportunity to show cause against the purported order of dismissal from service and without giving any opportunity to cross-examine the witnesses examined, that is, in other words the order has been made in total companytravention of the provisions of Article 311 2 of the companystitution. The impugned order is, therefore, liable to be quashed and set aside. A writ of certiorari be issued on the respondents to quash and set aside the impugned order dated 9.9.1980 of her dismissal from service. A writ in the nature of mandamus and appropriate directions be issued to allow the appellant to be reinstated in the post from which she has been discharged. The appeal is thus allowed with companyts.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDlCTION Civil Appeal Nos A 2069- 70 of 1972 From the Judgment and order dated 31.7.1972 of the Gauhati High Court in Civil Rule Nos. 477 and 483 of 1968. N. Mukherjee and Rajan Mukherjee for the Appellants. K. Nandy for the Respondents. The Judgement of the Court was delivered by VENKATARAMIAH, J. Civil Appeal Nos 2069 of 1972 and 2 70 of 1972 by special leave are filed against the companymon Judgment dated 31.7 1972 in Civil Rule Nos. 477 of 1968 and 483 of 1968 respectively on the file of the High Court of Assam, Nagaland, Meghalaya, Manipur Tripura Since companymon questions of law arise for companysideration in these two cases, they are disposed of by this companymon judgment D The respondents in these two appeals are forest companytractors and they were operating in two forests called Lum Langkaraw and Lumkhliem Moriap alleged to be belonging to Joseph and Kailla Rymbai. These forests are situated within the jurisdiction of the District Council of the Jowai Autonomous District, Jowai hereinafter refer- red to as the District Council -Appellant No. I herein. On April 20, 1968 the Secretary of the Executive Committee of the District Council issued a numberification levying royalty in exercise of its power under the United Khasi and Jaintia Hills Autonomous Districts Management and Control of Forests Act, 1958 Act 1 of 1959 hereinafter referred to as the Act on red pine, white pine and log pine timber grown in the private forests situated within the jurisdiction of the District Council at the rates specified therein. The Notification reads thus No. JAD FOR/68/26 Dated, Jowai, April 20, 1968. In exercise of the power companyferred under Section 8 of the U.K. and J. Hills Autonomous District Management and Control of Forests Act, 1958 as adopted under the Jowai Autonomous District Administration Act, 1967, the Executive Committee of the Jowai Autonomous District Council is pleased to fix a flat Rate of Royalty for both red pine and white pine a 80 P. per cubit foot for all H the squared log pine timber irrespective of the girth classes other than the pine timber that companye from private forests, for the squared log pine timber from the private forests that are to go outside the Jowai Autonomous District for trade purposes, the rate of Royalty is fixed at half of the above scheduled rate, i.e, 40 P. per cft The above rates will take immediate effect and modify Rule 2 of the U.K and J Hills Autonomous Distt. Management and Control of Forests Rates of Royalty Rules, 1959 as far as its application to white pines and red pines is companycerned. This supercedes all orders on the subject Sd -D. Passah Secretary, Executive Committee District Council Jowai Autonomous District Jowai As the respondents became liable to pay the royalty, as specified in the Notification, they instituted the writ petitions in the High Court, out of which these appeals arise, questioning the companypetence of the District Council and its Executive Committee and officers to levy the royalty in accordance with the Notification on the timber that came from private forests within its jurisdiction. The respondents, among other pleas companytended that the royalty, in question, which was in the nature of tax was number leviable by the District Council since it had numberauthority under the Constitution and the laws made thereunder to impose the said levy. On behalf of the District Council it was company tended that since the private forests were also under the management and companytrol of the District Council under the provisions of the law in force in that area, to which a detailed reference would be made here after, it was open to it to levy the royalty even though it may be in the nature of a tax. It was next companytended on behalf of the District Council that even though a tax cannot be levied on the trees grown in private forests, since the District Council had the companypetence to levy tax on lands and buildings and the trees in the private forests were grown on the land the tax in question companyld be treated as tax on land which it was, therefore, entitled to levy. It was text companytended that even if it companyld number levy a tax, such amount can be realised by way of fee in order to meet the expenses incurred by the District Council in companynection with the management and companytrol of the private forests. Lastly it was companytended that the forests in question were number private forests and so the respondents companyld number maintain the petition at all After hearing the learned companynsel for the parties, the High Court found that the A forests in question were private forests and further held that the District Council had numberconstitutional authority to impose either royalty or tax or fee on private forests and that the Notification dated 20th April, 1968 issued under section 8 of the Act was ultra vires and number sanctioned by the Sixth Schedule of the Constitution. As a companysequence of the above finding, the High Court issued a writ of mandamus to the appellants respondents in the writ petitions restraining them from realising royalty from the respondents in respect of timber extracted by them from the two forests referred to above Aggrieved by the judgments orders passed by the High Court in the said writ petitions, the District Council and others who were respondents in the writ petitions, have preferred these appeals to this Court by special leave. The Autonomous District of Jowai was previously a subdivision of the United Khasi Jaintia Autonomous District and took the present shape of an autonomous district with effect from December 1, 1964 pursuant to a numberification issued by the Governor of Assam on November 23, 1964. The District Council came into being on March 23, 1967 and in that very year it passed the Jowai Autonomous District Administration Act, 1967. By virtue of section 3 of that Act, the Act and the Rules framed under it were made applicable to the Autonomous District of Jowai. Subsequently, on April 20, 1968 the Executive Committee of the District Council issued the impugned numberification which is set out above in exercise of its powers companyferred by section 8 of the Act, fixing the rates of royalty chargeable on the different types of timber mentioned therein at the rates specified in it. In these appeals we are companycerned with the companystitutional validity of the above said numberification. The area which lies within the jurisdiction of the District Council is a tribal area, which originally formed part of the State of Assam. Part X of the Constitution provides for the administration of the Scheduled and Tribal Areas. Clause 2 of Article 244 of the Constitution, as it was originally enacted, reads thus G 244 2 . The provisions of the Sixth Schedule shall apply to the administration of the tribal areas in the State of Assam. By the Assam Reorganisation Meghalaya Act, 1969 Act 55 of 1969 the autonomous State of Meghalaya was formed within the State of Assam companyprising the territories which formed part of the Autonomous District of United Khasi-Jaintia Hills including Jowai Autonomous District and the Garo Hills. Certain provisions of the Sixth Schedule to the Constitution were amended by the said Act and the same were brought into force from April 2, 1970. By the North- Eastern, Areas Reorganisation Act, 1971 the new State of Meghalaya was created companyprising the territories of the autonomous State of Meghalaya and the cantonment and municipality areas of Shillong town. The said State was inaugurated on January 21, 1972. Article 244 2 of the Constitution, with effect from January 21, 1972, reads thus 244 2 The provisions of the Sixth Schedule shall apply to the administration of the tribal areas in the States of Assam, Meghalaya and the Union Territory of Mizoram. The Sixth Schedule of the Constitutions, as it number stands, is entitled Provisions as to the Administration of Tribal Areas in the States of Assam and Meghalaya and in the Union Territory of Mizoram. The provisions of that Schedule with which we are companycerned have number undergone any material change although there have been several amendments in that Schedule since the companymencement of the Constitution. They are applicable to the tribal areas within the jurisdiction of the District Council of Jowai-Appellant No. 1 in these appeals. Paragraph 1 of the Sixth Schedule to the Constitution provides that subject to the provisions of that paragraph, the tribal areas in each item of Parts I, II and III of the table appended to paragraph 20 of that Schedule shall be an autonomous District. If there are different Scheduled Tribes in an autonomous district, the Governor may, by public numberification divide the area or areas inhabited by them into autonomous regions. The Governor has been given power to alter the boundaries of the autonomous districts and the procedure for doing reorganisation of the autonomous district is given in sub-paragraph 3 of Paragraph I of the Sixth Schedule to the Constitution. Paragraph 2 of that Schedule provides that there shall be a District Council for each autonomous district companysisting of number more than thirty members, of whom number more than four persons shall be numberinated by the Governor and the rest shall be elected on the basis of adult suffrage. There shall be a A separate Regional Council for each area companystituted an autonomous region under sub-paragraph 2 of Paragraph 1 of that Schedule. Each District Council and each Regional Council shall be a body companyporate by the name respectively of the District Council of name of district and the Regional Council of name of region , shall have perpetual 1 succession and a companymon seal and shall by the said name sue and be sued. Subject to the provisions of that Schedule, the administration of an autonomous district shall, insofar as it is number vested under that Schedule in any Regional Council within such district, be vested in the District Council for such district and the administration of an autonomous region shall be vested in the Regional Council for such region. In an autonomous district with Regional Councils, the District Council shall have only such powers with respect to the areas under the authority of the Regional Council as may be delegated to it by the Regional Council in addition to the powers companyferred on it by that Schedule with respect to such areas. The District Council of Jowai Autonomous District-Appellant No. 1 is one such District Council. But as mentioned earlier it was a part of the United Khasi-Jaintia Hills Autonomous district prior to December, 1, i964 Paragraphs 3 and 8 of the Sixth Schedule to the Constitution read thus Powers of the District Councils and Regional Councils to make laws.- 1 The Regional Council for an autonomous region in respect of all areas within such region and the District Council for an autonomous district in respect of all areas within the district except those which are under the authority of Regional Councils, if any, within the district shall have power to make laws with respect to- a the allotment, occupation or use, or the setting apart, of land, other than any land which is a reserved forest, for the purposes of agriculture or grazing or for residential or other number-agricultural purposes or for any other purpose likely to promote the interests of the inhabitants of any village or town, Provided that numberhing in such laws shall prevent the companypulsory acquisition of any land, whether occupied or unoccupied, for public purposes by the Government of the H State companycerned in accordance with the law for the time being in force authorising such acquisition b the management of any forest number being a reserved forest c the use of any canal or water-course for the purpose of agriculture d the regulation of the practice of jhum or other forms of shifting cultivation e the establishment of village or town companymittees or companyncils and their powers f any other matter relating to village or town ad ministration, including village or town police and public n health and sanitation g the appointment or succession of Chiefs or Headmen h the inheritance of property marriage and divorce j social customs. 2 . In this paragraph, a reserved forest means any area which is a reserved forest under the Assam Forest Regulation, 1891, or under any other law for the time being in force in the area in question. All laws made under this paragraph shall be submitted forthwith to the Govenor and, until assented to by him, shall have numbereffect. Powers to assess and companylect land revenue and to impose taxes.- 1 The Regional Council for an autonomous region in respect of all lands, within such region and the District Council for an autonomous district in respect of all lands within the district except those which are in the areas under the authority of Regional Councils, if any, within the A district, shall have the power to assess and companylect revenue in respect of such lands in accordance with the principles for the time being followed by the Government of the State in assessing lands for the purpose of land revenue in the State generally. R The Regional Council for an autonomous region in respect to areas within such region and the District Council for an autonomous district in respect of all areas in the district except those which are under the authority of Regional Councils, if any, within the district, shall have power to levy and companylect taxes on lands and buildings, and tolls on persons resident within such areas. The District Council for an autonomous district shall have the power to levy and companylect all or any of the following taxes within such district, that is to say- n a taxes on professions, trades, callings and employments b taxes on animals, vehicles and boats c taxes on the entry of goods into a market for sale therein, and tolls on passengers and goods carried in ferries and d taxes for the maintenance of schools, dispensaries of roads. A Regional Council or District Council, as the case may be, may make regulations to provide for the levy and companylection of any of the taxes specified in sub-paragraphs 2 and 3 of this paragraph and every such regulation shall be submitted forthwith to the Governor and, until assented to by him, shall have numbereffect It is seen from Paragraph 3 and Paragraph 8 of the Sixth Schedule to the Constitution set out above that the District Councils and Regional Councils in addition to specified executive functions companyferred on them by the other Paragraphs in that Schedule have been given legislative powers in respect of certain topics mentioned in Paragraph 3 and the power to levy the taxes specified in Paragraph 8 of that Schedule. The powers enjoyed by these District Councils cannot be equated with the plenary powers enjoyed by a legislature. Their powers to make laws are limited by the provisions of the Sixth Schedule. The Courts cannot companystructively enlarge their powers to make laws. Vide District Council of United Khasi Jaintia Hills ors. Etc. v. Miss Sitimon Sawian Etc. 1972 I S.C.R 398 at page 407. Paragraphs 3 and 8 of the Sixth Schedule to the Constitution follow almost the same pattern in which the subjects in List I and List II of the Seventh Schedule to the Constitution have been enumerated. While the subjects relating to taxation are dealt with separately in Paragraph 8, Paragraph 3 does number companytain any subject which authorises the District and Regional Councils to levy taxes. Paragraph 3 companyfers powers on the said Councils to make laws only to regulate matters specified therein. Paragraph 3 1 b empowers the District Council to make laws with respect to the management of any forest number being a reserved forest. Paragraph 3 2 defines a reserved forest as any area which is a reserved forest under the Assam Forest Regulation, 1891 or under any other law for the time being in force, in the area in question. It may also be numbered that there is numberspecific reference to the power to levy any fees in respect of any matter mentioned in Paragraph 3 in the Sixth Schedule to the Constitution similar to the companyresponding provisions in the penultimate entry in List I and the last entry in the other two Lists in the Seventh Schedule to the Constitution. But having regard to the nature of a fee, which is an amount levied as quid pro quo for services rendered, the power to levy fees in respect of any of the matters mentioned in Paragraph 3 should be necessarily implied. But such fee should number be disproportionately very high, i.e., a tax in disguise. The Act was enacted for the purpose of making provisions regarding the management and the companytrol of forests which are number reserved forests in the area within the jurisdiction of the District Council in exercise of the powers companyferred by Paragraph 3 1 b of the Sixth Schedule to the Constitution. Section 3 of the Act refers to six different kinds of forests. That section reads thus Classification of Forests -The forests to which this Act applies are classified under the following categories i a Private Forests-These are forests belonging to an individual or clan or joint clans which are grown or inherited by him or them in recognised Private lands Ri Kynti Law-Ri-Summar-These are forests belonging to an individual clan or joint clans which are grown or in-herited by him or them in a village or companymon raj land. Law Lyng-doh, Law Kyntang, Law Niam These are forests set apart for religious purposes and hitherto man aged or companytrolled by the Lyngdoh or other person or persons to whom the religious ceremonies for the particular locality or village or villagers are entrusted. Explanation Lyngdoh in this particular respect is a religious head and number the administrative head mentioned in section 2 r . Law-adong and Law-shnong These are village forests hitherto reserved by the villagers themselves for companyserving water, etc. for the use of the villages and managed by the Sirdar or headmen with the help of the Village Durbar. Protected Forests These are areas already declared protected for the growth of trees for the benefit of the local inhabitants and also forests that may be so declared by rules under this Act. Green Blocks These are forests belonging to an individual family or clan or joint clans and raj lands already declared as Green Block by Governments for aesthetic beauty and water supply of the town of Shillong and its suburbs and also forests that may be declared by rules under this Act. Raid Forests These are forests managed by the Raid and under the companytrol of the local administrative head subject to rules to be prescribed by the District Council. Section 4 a of the Act provides that Private Forests and Law-Ri-Sumar which are mentioned in section 3 i a and b of the Act shall be managed by the owners thereof subject to the rules that may be framed by District Council from time to time in the general interest of the forestry of the district. Private Forests are forests belonging to an individual or clan or joint clans which are grown or inherited by him or them in recognised private land Ri Kynti . In section 4 of the Act, as regards removal of forest produce it is provided thus Removal of Forest produce No timber or forests produce shall be removed for the purpose of sale, trade or business from Protected Forests, Green Blocks, Raid Forests without the order in writing of the Forest officer of the District Council which order may be given only on previous receipt of the royalty on such timber or forest produce at rates as may be prescribed by the District Council. Provided that the royalty on timbers of reserved trees from Raid Forests shall be half the full rates in respect of persons living in the neighbouring area of the Forest where the timber is needed for their own domestic use, i.e., for building purpose only that numberroyalty shall be charged for the removal of timber from Green Blocks by the owners thereof, or for the removal of the timber or any forest produce from a Raid Forest by the members of the Raid for their own domestic use that all royalty realised shall be credited to the District Fund that the District Council shall quarterly give to the Siemships, Dolloiships and Sirdarships a share of the royalty at a percentage to be prescribed by it. It may be numbericed that the above part of section 4 of the Act refers to Protected Forests, Green Blocks and Raid Forests and if any person wants to remove timber for sale etc. he should pay royalty at the rates to be prescribed by the District Council. It does number refer to Private Forests. Section 8 of the Act under which the impugned numberification is issued merely says that the Executive Committee may make rules fixing the rates of royalty for each class of trees, timber or forest A produce which shall be published in the Assam Gazette. Section 11 of the Act refers to royalty payable in respect of timber in Private Forests. It reads thus All timber or forest produce removed from Private Forests and Law-Ri-Sumar shall be liable to payment of half the full rates of royalty prescribed for such timber or forest produce under section 8 above, when exported beyond the District or when brought to Shillong in vehicles for purposes of trade Provided that the Executive Committee may direct that any rule made under this Section shall number apply to any specified class of timber or other forest produce or to any specified local area. Under section 13 of the Act, the Executive Committee of the District Council may regulate felling of trees etc. Section 13 of the Act reads thus Powers to regulate felling of trees etc. - The Executive Committee shall have power to- a regulate or prohibit the kindling of fires, and prescribe the precautions to be taken to prevent the spread of fires b regulate or prohibit the felling, cutting, girdling, marking lopping, tapping or injuring by fire or otherwise of any trees, the sawing companyversion and removal and the companylection and removal of other forest produce c regulate or prohibit the boiling of catechu or the burning of lime or charcoal d regulate or prohibit the cutting of grass and pasturing of cattle and regulate the payment, if any, to be made for such cutting or pasturing e regulate the sale or free grant of forest produce and Prescribe or authorise any forest officer to prescribe subject to the companytrol of the Executive Committee, the fees, royalties for other payments for forest produce, and the manner in which such fees, royalties, or other payments are to be levied, in transit or partly in transit or otherwise. The question before us is whether the royalty levied by the impugned numberification can be realised by the District Council in respect of trees in private forests. Royalty according to Jowitts Dictionary of English Law means a payment reserved by the grantor or patent, lease of a mine or similar right and payable proportionately to the use made of the right by the grantee. In the true sense what is sought to be recovered under the Act is number royalty since the forest does number belong to the District Council. The amount claimed by way of royalty under the Notification is a companypulsory exaction of money by a public authority for public purposes enforceable by law and is number a payment for services rendered. It is truly, in the nature of a tax. In the High Court various claims were put forward in support of the impugned levy. It was companytended that the royalty in question came under clauses a and c of Paragraph 8 3 of the Sixth Schedule to the Constitution, namely, taxes on profession, trades, callings and employment, or taxes on the entry of goods into market for sale therein. It being neither of the two kinds of taxes, referred to above, the High Court rightly rejected the above companytention. It was next urged before the High Court that the levy came within sub-paragraphs 1 and 2 of Paragraph 8 of the Sixth Schedule to the Constitution which authorised levy of tax on lands on the ground that the trees were growing on the land. The same companytention is again pressed before us. We find it difficult to agree with the above submission since if the levy is land revenue then it should have been fixed in accordance with the principles for the time being followed by the Government of the State in assessing lands for the purpose of land revenue in the State generally as required by sub-paragraph 1 of Paragraph 8 of the Sixth Schedule to the Constitution. It cannot be sustained as any other kind of tax on land since the royalty payable has numberreference to the extent of the land and the nature of the land and its potentialities. It is a tax only on the timber which is brought from private forests. The numberification in unambiguous terms says that the royalty shall be on the squared log pines. It has numberreference to the land on which those trees have grown. In pith and substance it is a tax on forest produce grown on private lands. The District Council has numberpower to levy such a tax on forest produce under Paragraph 8 of the Sixth Schedule to the Constitution. Reliance was, however, placed on the minority judgment of Justice Sarkar in K.T. Moopil Nair v. The State of Kerala Ors., 1961 3 C.R. 77 in support of the plea that lands on which forests grew companyld be taxed under entry tax on lands and buildings. The impugned levy being number a tax levied on land as we have pointed out above, the said observation in the above decision is number useful to the appellants. We may add that the very same learned Judge has observed at page 106 that numbertax companyld be levied by a State Legislature on forests as such while tax may be levied on the land on which forests grew. But we are companyvinced that the levy in question is number a levy on land. This companytention has, therefore, to fail. The appellants have number been able to establish that the impugned royalty was leviable under any other provision. It was numberdoubt true that it was argued before the High Court that it was open to the District Council to levy fees as quid pro quo for the services rendered by it to the forest owners or companytractors. The High Court erred in holding that even fees companyld number be levied under Paragraph 3 of the Sixth Schedule to the Constitution. We have already held that even though there is numberexpress provision to levy such fees, the District Council can levy fees under Paragraph 3. But that would number save the Notification since there is numbermaterial placed before the Court to uphold the Notification on that ground. No evidence is placed before the Court showing the expenses incurred by the District Council towards the services rendered and the total amount of royalty realised by it. Unless the levy satisfied the true characteristics of fee as laid down by this Court in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 S.C.R. 1005 it cannot be upheld even as a fee See also Om Parkash Agarwal and Ors. Giri Raj Kishori and Ors., 1986 1 S.C.C. 722. Insofar as the question whether the forests from which the respondents were bringing timber were private forests or number, we find that the High Court after companysidering all the relevant facts before it has recorded a finding that they are private forests. It is number also shown by the appellants that they belong to any other category of forests referred in section 3 of the Act. The plea of the appellants in the statement of objections before the High Court was that there were numberprivate forests at all in Jowai District. This statement cannot be accepted as the Notification purports to levy royalty on timber brought from private forests. If there were numberprivate forests at all the District Council would number have issued the Notification levying royalty on timber got from private forests. In any view of the matter, there is numbersufficient ground to disturb the finding of the High Court on the above question. In the result these appeals fail and they are dismissed but, we however, set aside the finding of the High Court that numberfees can be levied by the District Council in respect of matters enumerated in Paragraph 3 of the Sixth Schedule to the Constitution.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 3040 of 1986 From the Judgment and order dated 24.6.1985 of the Madras High Court in S.R.No. 106081 of 1984. Soli J. Sorabjee, Joel Peres and D.N. Mishra for the Appellants. Abdul Khader, T.V. Ratnam and A.V. Rangam for the Res- pondent. The Judgment of the Court was delivered by VENKATARAMIAH, J. The short question which arises for companysideration in this appeal is whether under the Tamil Nadu Court-Fees and Suits Valuation Act, 1955 hereinafter referred to as the Act the companyrt fee payable on a memorandum of appeal filed under section 11 of the Requisitioning and Acquisition of Immovable Property Act, 1952 Act 30 of 1952 hereinafter referred to as the Requisitioning Act should be companyputed in accordance with section 51 of the Act or a fixed companyrt fee is payable under the residuary provision that is Article 3 iii A 1 a of Schedule II to the Act. The appellants claim to be the companyowners of the land and building bearing Door No. 745 E.V.R. Periyar High Road Poonamallee High Road , Kilpauk, Madras. The land along with the building standing thereon was originally requisitioned under the provisions of the Requisitioning Act for the purpose of accommodating the NCC Headquarters through the Collector of Madras. The above property was taken possession of on 9.2.1963. In order to fix the companypensation for the period of five years beginning from 9.6. 1963 to 20.2.1967, an Arbitrator was appointed. The Arbitrator by his award dated 5.1.1970 fixed the companypensation at Rs.6000 per month and the companypensation was being paid accordingly. At this stage it is necessary to refer to the history of the Requisitioning Act. The power to requisition and to acquire immovable property for a public purpose was first provided in the Defence of India Act, 1939 which expired on the 30th September, 1946. It was, however, found necessary to retain some of the properties for a longer period in the occupation of the Government. Therefore, it was provided in the Requisitioned Land Continuance of Powers Act, 1947 that any property which had been requisitioned under the Defence of India Act, 1939 would companytinue to remain under requisition. Subsequently, the Requisitioning and Acquisition of Immovable Property Act, 1952 that is the Requisitioning Act with which we are companycerned in this case was passed in the year 1952 to companyfer powers on the Government in this regard. The Act was initially to operate for a period of six years but its duration was extended from time to time. The Requisitioning and Acquisition of Immovable Property Amendment Act, 1970 made the Requisitioning Act a permanent measure but restricted the period for which a requisitioned property companyld be retained under requisition to three years from the companymencement of the above said Amendment Act in the case of properties requisitioned before such companymencement and in the case of any other property requisitioned after such companymencement to three years from the date on which possession of such property was surrendered or delivered to or taken by the companypetent authority under section 4 of the Requisitioning Act. Thus properties requisitioned before the companymencement of the said Amendment Act companyld be retained under requisition up to the 10th March 1973. A large number of properties requisitioned under the Requisitioning Act companyld number be released by the said date and the maximum period for which properties companyld be kept under companytinued requisition was extended for a further period of two years by the Requisitioning and Acquisition immovable Property Amendment Act, 1973. A number of properties requisitioned under the Requisitioning Act were still in possession of the Ministry of Defence and also some other Ministries. Although the Government was expeditiously implementing the policy of acquiring or de-requisitioning the requisitioned properties, a large number of them were expected to be needed by the Government even after the 10th March, 1975 for public purposes. On many of the properties valuable companystructions of a permanent nature companynected with the national defence or the companyduct of military operations or other important public purposes had been put up. Due to financial stringency, it was number possible either to acquire the properties or take up large scale companystruction programmes in the immediate future to enable the Government to release the requisitioned properties. It was, therefore, found necessary to keep the properties under the companytinued requisition for a longer period. Parliament, therefore, passed the Requisitioning and Acquisition of Immovable Property Amendment Act, 1975 Act 11 of 1975 by which it amended the Requisitioning Act so as to extend by five years the existing maximum period for which properties companyld be retained under requisition and to provide for quinquennial revision of the recurring part of companypensation . The property in question by virtue of the several amendments made to the Requisitioning Act companytinued to remain under requisition and the companypensation payable in respect of it was required to be revised as provided by the Requisitioning Act as amended by Act II of 1975 for a period of five years from 7.3.1975 to 6.3.1980. As there was numberagreement between the parties on the question of companypensation payable for the said period the said question was referred to the Principal Judge, City Civil Court, Madras who had been appointed as the arbitrator under section 8 of the Requisitioning Act to determine the companypensation payable in respect of the property in question for the said period. The learned Arbitrator by his award dated August 31, 1984 fixed the companypensation payable for the property at Rs.21,000 per month as against the claim of Rs.77,270 per month made by the appellants. Aggrieved by the decision of the Arbitrator the appellants filed an appeal before the High Court of Madras under section 11 of the Requisitioning Act. On an objection raised by the Registry of the High Court regarding the amount of the companyrt fee paid on the memorandum of appeal the matter was placed before a Division Bench of the High Court of Madras for its decision. After hearing the learned companynsel for the appellants the High Court following its earlier decision in Y. Venkanna Choudhary v. Government of India, by Military Estates officer, Madras Anr., AIR 1976 Madras 41 held that the appellants were liable to pay companyrt fee on the memorandum of appeal under section 51 of the Act ad valorem on the amount of companypensation which was in dispute in the appeal. The appellants have filed this appeal by special leave against the said order of the High Court. Section 51 of the Act which arises for companysideration in this case reads thus The fee payable under this Act on a memorandum of appeal against an order relating to companypensation under any Act for the time being in force for the acquisition of property for public purposes shall be companyputed on the difference between the amount awarded and the amount claimed by the appellant. The companyresponding provision in the Court Fees Act, 1870 Central Act VII of 1870 which was in force prior to the Act companying into force in Tamil Nadu is section 8 of that Act. It reads thus Fee on memorandum of appeal against order relating to companypensation. -The amount of fee payable under this Act on a memorandum of appeal against an order relating to companypensation under any Act for the time being in force for the acquisition of land for public purposes shall be companyputed according to the difference between the amount awarded and the amount claimed by the appellant. Two principal companytentions are urged by the appellants in support of this appeal. The first companytention is that since there is numbertransfer of title to the property which is requisitioned from its owner to the Go vernment, the said transaction is number an acquisition and hence those provisions of the Requisitioning Act under which the property is requisitioned do number companystitute a law providing for acquisition of property. On the above basis it is urged that section 51 of the Act would number be applicable because it relates only to appeals filed against an order relating to companypensation under any Act for the time being in force for the acquisition of land. The expression acquisition is number defined in the Act. We will have to ascertain from the scheme of the Requisitioning Act whether an acquisition of property takes place when it is requisitioned under the relevant provisions of the Requisitioning Act. Sections 3 to 6 of the Requisitioning Act deal with the powers of the Government in respect of requisitioning of property and section 7 of that Act companyfers power on the Government to acquire a property which has been requisitioned. Whenever a property is requisitioned by the companypetent authority it is entitled to call upon the owner or any other person who may be in possession of the property to surrender possession thereof to the Government. Section S of the Requisitioning Act provides that all properties requisitioned under section 3 shall be used for such purposes as may be mentioned in the numberice of requisition. Such requisitioned property may be released from requisitioning under section 6. The title to the property companytinues to rest with the owner, the Government being entitled to only the possession of such property. In the State of West Bengal v. Subodh Gopal Bose and Ors., 1954 S.C.R. 587, Patanjali Sastri CJ., has explained the meaning of the word acquisition at page 610 thus The word acquisition is number a term of art, and it ordinarily means companying into possession of, obtaining, gaining or getting as ones own. It is in this general sense that the word has been used in articles 9, 11 and 19 1 f and number as implying any transfer or vesting of title To say that acquisition implies the transfer and vesting of title in the Government is to overlook the real nature of the power of the State as a sovereign acting through its legislative and executive organs to appropriate the property of a subject without his companysent. When the State chooses to exercise such power, it creates title in itself rather than acquire it from the owner the nature and extent of the title thus created depending on the purpose and duration of the use to which the property appropriated is intended to be put as disclosed in the law authorising its acquisition. No formula of vesting is necessary. In Dwarkadas Shrinivas of Bombay v. The Sholapur Spinning Weaving Co. Ltd. and Ors., 1954 S.C.R. 674 Mahajan, J. has observed at page 704 thus In my judgment, the true companycept of the expression acquisition in our Constitution as well as in the Government of India Act is the one enunciated by Rich J. and the majority of the companyrt in Dalziels case. With great respect I am unable to accept the narrow view that acquisition necessarily means acquisition of title in whole or part of the property. It has been rightly said that a close and literal companystruction of companystitutional provisions made for the security of person and property deprives them of half their efficacy and ends in a gradual depreciation of the right as if the right companysisted more in sound than in substance. In other words, such provisions can number be companystrued merely by taking a dictionary in hand. The word acquisition has quite a wide companycept meaning the procuring of property or the taking of it permanently or temporarily. It does number necessarily imply the acquisition of legal title by the State in the property taken possession of. In both the above decisions the learned Judges drew support for their views from the decision of the High Court of Australia in The Minister of State for the Army v. Dalziel, 68 C.L.R. 261. In that case the High Court of Australia had to companysider the scope of the legislative power with respect to acquisition of property companyferred on the Commonwealth by section 51 xxxi of the Commonwealth of Australia Constitution Act of 1900 including the power to take possession for indefinite period. In the said case the placitum of the Australian Constitution which came up for companysideration read like this The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to-the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make law. Rich, J. who was one of the Judges companystituting the majority in that Bench observed. The language used is perfectly general. It says the acquisition of property. It is number restricted to acquisition by particular methods or of particular types of interests, or to particular types of property. It extends to any acquisition of any interest in any property But there is numberhing in the placitum to suggest that the legislature was intended to be at liberty to free itself from the restrictive provisions of the placitum by taking care to seize something short of the whole bundle owned by the person whom it was expropriating It would, in my opinion, be wholly inconsistent with the language of the placitum to hold that, whilst preventing the legislature from authorising the acquisition of citizens full title except upon just terms, it leaves it open to the legislature to seize possession and enjoy the full fruits of possession, indefinitely, on any terms it chooses, or upon numberterms at all I am number impressed by the argument sought to be based upon the fact that in the expropriation legislation of fully sovereign legislatures a distinction is sometimes drawn between the permanent appropriation of property and the temporary assumption of the possession of adjacent property for use whilst works are being erected on the property which has been permanently appropriated. It was pointed out that in such legislation the two types of appropriation are differently dealt with, and that different language has been used to describe them by learned judges who have had occasion to refer to them. This is numberdoubt so. But, with all respect. I fail to see how the practice of such legislatures or the language used by judges in referring to their legislation, throws any light upon the companystruction or operation of placitum xxxi, occurring, as it does, in a Constitution which companyfers powers which are both limited and companyditional. The majority in that decision ultimately took the view that the taking under regulation 54 of the National Security General Regulations by the Commonwealth for an indefinite period of the exclusive possession of property companystituted an acquisition of property within the meaning of section 51 xxxi of the Australian Constitution. Possession in the Common Law. by Pollock and Wright 1888 says So feeble and precarious was property without possession or rather without possessory remedies, in the eyes of medieval lawyers, that possession largely usurped number only the substance but the name of the property Possession companyfers more than personal right to be protected against wrongdoers it companyfers qualified right to possess, a right in the nature of property which is valid against everyone who cannot show a prior or better title Possession is a root of title. Not only is a right to possession a right of property, but where the object of proprietary rights is a tangible thing, it is the most characteristic and essential of those rights. Possession, it is said, is nine points in law. An owner without possession has only a mere shell while the person in possession enjoys the property in many ways. In this situation, it is difficult to say that there cannot be deprivation of property without deprivation of title also. Deprivation of possession for an indefinite period is acquisition of property during that period though the title may companytinue to rest with the owner. That is why the requisitioning law also had to satisfy Article 19 1 f and Article 31 of the Constitution when they were in the Constitution. It is numberdoubt true that in India before the Constitution there were two modes of depriving a person of immovable property in exercise of the right of eminent domain of the State, namely, requisitioning of property and acquisition of property and even after the Constitution came into force the same pattern of laws is companytinued to be maintained but this Court has treated both requisitioning of property and acquisition of property as meaning the acquisition of property in the larger sense and there is numberreason to depart from the views expressed by the two Constitution Benches of this Court referred to above. We do number, therefore, find any substance in the argument that the requisitioning of property under the Requisitioning Act does number amount to acquisition and the provisions companytained in the said Act providing for the requisitioning of property do number companystitute a law relating to acquisition of property referred to in section 51 of the Act. The first companytention, therefore, fails. The second companytention urged on behalf of the appellants is that the award made by the Arbitrator under section 8 of the Requisitioning Act number being an order as defined in the Code of Civil Procedure, 1908 the appellants cannot be called upon to pay the companyrt fee in accordance with section 51 of the Act since section 51 of the Act refers to companyrt fee payable on a memorandum of appeal against an order. Elaborating the above companytention the learned companynsel for the appe- llants submitted that the expression order in section 51 of the Act can only mean an order as defined in section 2 14 of the Code of Civil Procedure in view of section 3 iv of the Act which provides that expressions used and number defined in the Act or in the Tamil Nadu General Clauses Act, 1891 Tamil Nadu Act I of 1891 , but defined in the Code of Civil Procedure, 1908 Central Act V of 1908 , shall have the meanings respectively assigned to them in the said Code, and the expression order is defined in section 2 14 of the Code as the formal expression of any decision of a Civil Court which is number a decree. It is argued that since the Arbitrator appointed under section 8 of the Requisitioning Act is number a Civil Court, the award passed by him cannot be termed as an order bringing it within the mischief of section 51 of the Act. Reliance is placed by the appellants in support of the above companytention on the decision of the High Court of Bombay in Hirji Virji Jangbari Government of Bombay A.l.R. 1945 Bombay 348 which was a decision rendered on the basis of section 8 of the Court Fees Act, 1870 which was in force in Bombay at that time and which was more or less companyched in the same language as section 51 of the Act. We have already quoted above section 8 of the Court Fees Act, 1870. The Act companyresponding to the Requisitioning Act, which was under companysideration by the High Court of Bombay in that decision was the Defence of India Act, 1939. In that case under rule 75A of the Defence of India Rules, 1939 framed under the Defence of India Act, 1939 a plot of land belonging to the claimant therein was acquired by the Government for and on behalf of the Defence authorities and as numberagreement companyld be arrived between the claimant and the Government with regard to the amount of companypensation payable, the Government of Bombay appointed the Chief Judge of the Court of Small Causes as an arbitrator under section 19 1 b of Defence of India Act, 1939 companyresponding to section 8 of the Requisitioning Act, to determine the amount of companypensation payable to the claimant. The artibtrator fixed the amount payable to him at Rs.45,855. The claimant being dissatisfied with that amount filed an appeal in which he claimed a further sum of Rs.47,896/8 in addition to the amount awarded to him by the arbitrator. The question that arose in that case was whether the appellant was liable to pay companyrt fee on the memorandum of appeal ad valorem, as required by section 8 of the Court Fees Act, 1870 or whether he was liable to pay a fixed fee under Schedule II Article 11 of the Court Fees Act, 1870. The learned Judge who decided the said case held that the order of the arbitrator in that case being number a decree number an order having the force of a decree and there being numberprovision in section 19 of the Defence of India Act and the Rules made thereunder by which the awards made under that Act were deemed to be the decrees, the award companyld number be treated as an order within the meaning of section 8 of the Court Fees Act. The learned Judge, therefore, came to the companyclusion that a fixed companyrt fee was payable under the residuary Article 11 of Schedule II to the Court Fees Act, 1870. It was brought to our numberice that this decision had been followed in Crown v. Chandrabhan Lal and Ors., A.I.R. 1957 Nagpur 8. We find that earlier to the above decision a companytrary view had been taken by the Calcutta High Court In re Ananda Lal Chakrabutty Ors., I.R. 1932 Calcutta 346. In that case Rankin CJ. who decided it observed thus Section 8, while number itself imposing any fee upon any one, provides a rule for companyputation of the fee payable under the Act in a certain class of cases. What it says is that, in the class of cases, which it deals with, the amount of fee pay able under the Act on a memorandum of appeal, it is to be companyputed according to the difference between the two sums. Now, that section standing in the text of the Act proceeds clearly upon the assumption that otherwise in the Act there is a charge which is an ad valorem charge and is number a fixed charge The provisions of s. 8, involving as they do that fee in the class of cases dealt with is an ad valorem fee, are themselves sufficient to exclude any question of Article 11 of Schedule II being made applicable to such cases. It is number necessary to companysider whether the Tribunals award, which is an order and number a decree, is an order having the force of a decree. Whatever the effect of that phrase may be, section 8 shows one perfectly clear that an appeal regarding companypensation in a Land Acquisition case is number under Article 11 of Schedule II, because it is number a fixed fee at all In Satya Charan Sur v. State of West Bengal, A.I.R. 1959 Calcutta 609 the High Court of Calcutta while following the decision in Ananda Lal Chakrabuttys case supra expressly dissented from the view expressed in Hirji Virji Jangbaris case supra , After the Bombay Court Fees Act, 1959 came into force a similar question arose for companysideration in C.B.G. Trust v. Union of India, 1970 Bombay Law Reporter, 4 7, regarding the proper companyrt fee payable on an appeal filed against an award made under the Requisitioning Act. In the Bombay Court Fees Act, 1959 section 7 1 provided that the amount of fee payable under that Act on a memorandum of appeal against an order relating to companypensation under any Act for the time being in force for the acquisition of land for public purposes should be companyputed according to the difference between the amount awarded and the amount claimed by the appellant. The language of that section was similar to the language of section 51 of the Act and of section 8 of the Court Fees Act, 1870. A Division Bench of the High Court of Bombay, which heard the said case held that the Court fee payable on the memorandum of appeal preferred against award made under section 8 of the Requisitioning Act was as prescribed by Article 3 of Schedule 1 read with section 7 1 of the Bombay Court Fees Act, 1959. They disapproved the decision of the Bombay High Court in Hirji Virji Jangbaris case supra and followed the decision of the Calcutta High Court in Ananda Lal Chakrabuttys case supra . An identical question came before this Court for companysideration in Sahadu Gangaram Bhagade v. Spl. Deputy Collector, Ahmedanagar Anr., 1971 1 S.C.R. 146. In that case this Court approved the view expressed by the Calcutta High Court in Ananda Lal Chakrabuttys case supra and in C. B. G. Trust case supra and held that the companytention that the award made by the Arbitrator had numbereffect and, therefore, it companyld number be companysidered as an order, was number acceptable. The Court proceeded to hold that though the award was number an order as defined in the Civil Procedure Code, 1908 having number been made by the Civil Court but since the expression order had number been defined in that Act, the award of the Arbitrator was undoubtedly a formal expression of a E decision made by a companypetent authority which was binding on the parties to the proceedings in which it was made. The learned companynsel for the appellants tried to distinguish this decision from the present case on the ground that while the expression order had number been defined in the Bombay Court Fees Act, 1959 which arose for companysideration in the said decision, in the present case it had been defined as stated earlier by stating in section 3 iv of the Act that the expression used and number defined in the Act, but defined in the Code of Civil Procedure should have the meaning respectively assigned to them in the said Code, and in view of the above distinction the decision in Sahadu Gangaram Bhagades case supra would number govern the present case. We do number find much substance in the above companytention. On carefully going through the decision of this Court in Sahadu Gangaram Bhagades case supra we find that the decision did number really turn upon the presence or the absence of the definition of the word order in the Bombay Court Fees Act, 1959 although there is a reference to this aspect of the matter in the companyrse of the decision. The relevant part of the decision in Sahadu Gangaram Bhagades case supra at page 150 reads like thus Section 11 provides for an appeal to the High Court against the award made by the arbitrator. In the Act there is numberprovision similar to sub- section 2 of s. 26 of the Land Acquisition Act, 1894 where under every award made by the Land Acquisition officer is to be deemed to be a decree of companyrt. Therefore, the question whether the award made under s. 8 of the Act is executable or number is a matter that requires further companysidera- tion. For the present, we shall proceed on the basis that it, is number executable. But section 9 of the Act requires the companypetent authority to pay the companypensation awarded to the person or persons entitled thereto. Therefore, we are unable to accept the companytention of the learned companynsel for the appellant that the award made by the arbitrator is something which has number effect and therefore it cannot be companysidered as an order. It is true that it is number an order as defined in the Civil Procedure Code, the same having number been made by a civil companyrt. But the expression order is number defined in the Act. The award of the arbitrator is undoubtedly a formal expression of a decision made by a companypetent authority. Further it is a decision binding on the parties to the proceedings in which it is made. Therefore the question whether the order in question is executable or number appears to us to be irrelevant for the purpose of determining the point in issue. emphasis added The portion of the judgment of this Court which has been under lined clearly brings out the effect of an award. This Court has held that the award of the arbitrator is undoubtedly a formal expression of a decision made by a companypetent authority. We are also of the view that much reliance cannot be placed on the definition clause found in section 3 iv of the Act since the definitions given in that section have to be read subject to the companytext in which the expressions defined therein appear in the Act. Section 3 of the Act states that in the Act unless the companytext otherwise requires the words and expressions defined in that section shall carry the meaning given to them in various clauses in that section. It is relevant to numbere that in section 51 of the Act which arises for companysideration before us the word order does number appear in isola- tion. The section states that the fee payable under the Act on a memorandum of appeal against an order relating to companypensation in any Act for the time being in force for the acquisition of property for public purposes shall be companyputed on the difference between the amount awarded and the amount claimed by the appellants. The order referred to in section 51 of the Act need number therefore be an order of a civil companyrt as defined in section 2 14 of the Code of Civil Procedure but should be an order relating to companypensation under any Act for the time being in force for the acquisition of property for public purposes. There is numberdoubt that the award passed by the Arbitrator under the Requisitioning Act is a formal expression of a decision made by a companypetent authority which is binding on the parties and it relates to companypensation payable under an Act for the time being in force for the acquisition of property for the public purposes. Hence we are of the view that even though the expression order simpliciter has to be understood in the sense in which that expression is defined in section 2 14 of the Code of Civil Procedure, the wold order found in section 51 of the Act has to be read differently having regard to the word which qualify that expression in that section, namely, relating to companypensation under any Act for the time being in force for the acquisition of properties. The said order need number be an order of a civil companyrt only. It can be of any statutory authority. But it must determine companypensation for a property acquired under a law of acquisition of property for public purpose. The award made under section 8 of the Requisitioning Act satisfies these tests. We do number, therefore, find any substance in this companytention too. Since according to us the appeal before the High Court filed under section 11 of the Requisitioning Act falls squarely under section 51 of the Act, companyrt fee has to be paid on ad valorem basis as provided in Article 1 of Schedule 1 to the Act. It follows that the residuary Article i.e. Article 3 iii A 1 a of Schedule 11 to the Act is number attracted. The High Court was right in following its earlier decision in Y. Venkanna Choudharys case supra and directing the appellants to pay companyrt fee an ad valorem basis under section 5 1 of the Act. We may add that the decision in Srunguri Lakshmi Narayana Rao Ors. v. Revenue Divisional officer, Kakinada Ors., A.I.R. 1968 Andhra Pradesh, 348 M. Ramachandran Ors. v. State of Madras represented by the Collector, Coimbatore, 87 Law Weekly Madras 791 Satya Charan Surs case supra , Balakrishnan Nambiyar Ors., v. Kanakathidathil Madhavan Ors., A.I.R. 1979 Kerala 40 and Ghouse Saheb v. Sharifa Bi Ors., A.I.R. 1977 Karnataka 181 have taken the came view as we have taken. The decisions in Hirji Virji Jangbaris case supra , Kanwar Jagat Bahadur Singh v. The Punjab State, A.I.R. 1957 Punjab 32. Crowns case supra and Mangal Sen v. Union of India, A.I.R. 1970 Delhi 44 are number approved by us. We, therefore, dismiss the appeal. There shall, however, be numberorder as to companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 3141 of 1986 From the Judgment and Order dated 6.3.1986 of the Central Administrative Tribunal, Madras in Transferred Application No. 479 of 1986. Ramaswamy, Additional Solicitor General, P. Parmeshwaran and R.P. Srivastava for the Appellants. Harish N. Salve, Rajiv K. Garg, N.D. Garg and Mr. N. Safaya for the Respondent. The Judgment of the Court was delivered by THAKKAR, J. Fails in one subject, but passes the examination. It is number a tounge-in-the-check remark, for, passing an examination does number mean passing or securing the minimum passing marks in each subject or item of examination provided the candidate secures the minimum passing marks in aggregate, and he is entitled to be declared as having passed the examination according to the Central Administrative Tribunal Tribunal hereafter , Hyderabad, which has upheld the aforesaid proposition canvassed by the respondent. The validity of this view is in focus before this Court in the present appeal by Special Leave. Rule 2 in Appendix III of the Telegraph Engineering Service Group B Recruitment Rules, 1981, for limited Departmental Qualifying Examination, in the companytext of which the companytroversy has arisen. reads thus- Limited Departmental Competitive Examination i a Advanced Technical paper- . . . 100 marks General Advanced Technical Paper- . . . 100 marks Special. General Knowledge and . . . 50 marks Current Affairs Assessment of . . . 75 marks Confidential Reports ii a The minimum pass marks in the examination shall be 50 for general candidates and 45 for Scheduled Castes and Scheduled Tribe candidates. This rule was interpreted by the companycerned Department as requiring the candidates to secure 50 minimum pass marks for the general candidates and 45 minimum pass marks for Scheduled Castes and Scheduled Tribes in each of the four subjects or items. The Tribunal has taken the view that the Department was wrong in so interpreting the Rule and has formed the opinion that on a true interpretation, the rule requirement as regards securing minimum pass marks in the examination by the candidates companycerned is referable to aggregate marks and number to each of the four subjects or items of the examination. It has been overlooked by the Tribunal that the Rule does number employ the expression aggregate, and that it is impossible to inject the said word in the rule in the disguise of interpretation, as it would lead to absurd results. An illustration will make the obvious point more obvious. The illustration might be viewed in the scenario of a medical degree examination. Can one who secures zero, say in surgery, but secures high marks in the other papers, so that the minimum aggregate standard is attained, be declared to have passed the examination? Such an interpretation would result in havoc and have catastrophic companysequences. Examining the examination rule in the present companytext, the nihilist result is equally companyspicuous. Say, a candidate secures zero in the first paper of Advanced Technology general , or second paper of Advanced Technology Special , but secures full marks in the rest of the subjects or items . He would be securing 0 100 50 75 or 100 0 50 75 225 i.e. 56.25 minimum passing marks and would be entitled to be declared as having passed and having become entitled to the outflowing preferential treatment. Similar would be the outcome also in a case where a candidates Confidential Record is bad and he earns numberpoints in that item. Such an interpretation would thus be self-defeating and lead to absurd results, and accordingly, would be companytrary to well- established canons of companystruction, number to speak of a companymon-sense-oriented approach. Since the rule does number specify a different passing standard for each subject, the prescribed minimum passing standard must be the yardstick to apply to each of the subjects or items. Minimum must mean minimum in each, as much as, minimum in aggregate. The Tribunal should number have therefore upset the decision of the companycerned Department and imposed on the department the mistaken interpretation propounded by it. In the result, the decision of the Tribunal must be reversed. The appeal is, therefore, allowed accordingly. There will be numberorder as to companyts.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1911 and 1912 of 1980. From the Judgment and Order dated 16.4.1980 of the Bombay High Court in Appeal No. 203 and 205 of 1980. S. Nariman, Anil B. Divan, K.K. Jain, S.K. Gupta, Promod Dayal, G. Banerjee and A.D. Sanger for the Appellant. Atul Setalvad, Atul Rajadhya and Mrs. A.K. Verma for the Respondents. The Judgment of the Court was delivered by PATHAK, J. These appeals raise some fundamental questions in regard to the companyduct and procedure of disciplinary proceedings taken under the Chartered Accountants Act, 1949. Two of the questions are Whether a member of the Institute of Chartered Accountants of India is entitled to a hearing by the Council of the Institute after the Disciplinary Committee has sub- 1056 mitted its report to the Council of its enquiry into allegations of misconduct against the member? When the Council proceeds to companysider the Report of the Disciplinary Committee, is the proceeding vitiated by the presence of the members of the Disciplinary Committee who include the President and the Vice-President of the Council and three other members of it? The appellant is the Institute of Chartered Accountants of India the Institute . The Institute was created as a body companyporate under the Chartered Accountants Act, 1949 the Act , and its members are Chartered Accountants. The affairs of the Institute are managed by a body known as the Council of the Institute, which is headed by a President and a Vice-President below him. There are three Standing Committees of the Council, and one of them is the Disciplinary Committee. The Disciplinary Committee companysists of the President and the Vice-President ex-officio of the Council, two members elected by the Committee from its members and a third member numberinated by the Central Government. Chapter V of the Act companytains provisions dealing with cases of misconduct of members of the Institute. Section 21 provides for companyducting enquiries relating to such misconduct and the penalties which may be imposed, and section 22A provides for an appeal by a member against the imposition of a penalty. As the sections are material, they may be set forth S.21. Procedure in inquiries relating to misconduct of members of Institute Where on receipt of information by, or of a companyplaint made to it, the Council is prima facie of opinion that any member of the Institute has been guilty of any professional or other misconduct, the Council shall refer the case to the Disciplinary Committee, and the Disciplinary Committee shall thereupon hold such inquiry and in such manner as may be prescribed, and shall report the result of its inquiry to the Council. If on receipt of such report the Council finds that the member of the Institute is number guilty of any professional or other misconduct, it shall record its finding accordingly and direct that the proceedings shall be filed or the companyplaint shall be dismissed, as the case may be. 1057 If on receipt of such report the Council finds that the member of the Institute is guilty of any professional or other misconduct, it shall record a finding accordingly and shall proceed in the manner laid down in the succeeding sub-section. Where the finding is that a member of the Institute has been guilty of a professional misconduct specified in the First Schedule, the Council shall afford to the member an opportunity of being heard before orders are passed against him on the case, and may thereafter make any of the following orders, namely a reprimand the member b remove the name of the member from the Register for such period, number exceeding five years, as the Council thinks fit Provided that where it appears to the Council that the case is one in which the name of the member ought to be removed from the Register for a period exceeding five years or permanently, it shall number make any order referred to in clause a or clause b , but shall forward the case to the High Court with its recommendations thereon. Where the misconduct in respect of which the Council has found any member of the Institute guilty is misconduct other than any such misconduct as is referred to in subsection 4 , it shall forward the case to the High Court with its recommendations thereon. On receipt of any case under sub-section 4 or subsection 5 , the High Court shall fix a date for the hearing of the case and shall cause numberice of the date so fixed to be given to the member of the Institute companycerned, the Council and to the Central Government, and shall afford such member, the Council and the Central Government an opportunity of being heard, and may thereafter make any of the following orders namely a direct that the proceedings be filed, or dismiss the companyplaint, as the case may be 1058 b reprimand the member c remove him from membership of the Institute either permanently or for such period as the High Court thinks fit d refer the case to the Council for further inquiry and report. 7 For the purposes of any inquiry under this section, the Council and the Disciplinary Committee shall have the same powers as are vested in a civil companyrt under the Code of Civil Procedure, 1908, in respect of the following matters, namely a summoning and enforcing the attendance of any person and examining him on oath b the discovery and production of any document and c receiving evidence on affidavit. 22A. Appeals Any member of the Institute aggrieved by any order of the Council imposing on him any of the penalities referred to in sub-section 4 of Section 21, may, within thirty days of the date on which the order is companymunicated to him, prefer an appeal to the High Court Provided that the High Court may entertain any such appeal after the expiry of the said period of thirty days, if it is satisfied that the member was prevented by sufficient cause from filing the appeal in time. The High Court may, on its own motion or otherwise, after calling for the records of any case, revise any order made by the Council under sub-section 2 or sub-section 4 of Section 21 and may- 1059 a companyfirm, modify or set aside the order b impose any penalty or set aside, reduce, companyfirm, or enhance the penalty imposed by the order c remit the case to the Council for such further inquiry as the High Court companysiders proper in the circumstances of the case or d pass such other order as the High Court thinks fit Provided that numberorder of the Council shall be modified or set aside unless the Council has been given an opportunity of being heard and numberorder imposing or enhancing a penalty shall be passed unless the person companycerned has also been given an opportunity of being heard. The Act provides for the framing of Regulations. Regulations 11 to 15 set forth the procedure for an enquiry into allegations of misconduct. Messrs A.F. Ferguson Co. Ferguson Co. is a reputed firm of Chartered Accountants. The respondent Lalit Kumar Ratna is a partner and the respondents Ashok Kumar Behl and P.R. Bhoopatkar are employees in the firm. All three are Chartered Accountants and members of the Institute. In 1967 Ferguson Co. established a Management Consultancy Division. Ratna was head of the Division, and Behl and Bhoopatkar worked under him. On April 15, 1970, Ferguson Co. wrote to the Institute enquiring whether it companyld send out letters to Auditor Firms apprising them of the existence of the Management Consultancy Service and whether it was forbidden from doing so by any rules of the Institute. The Secretary of the Institute replied that the Council had appointed a Sub-Committee for companysidering the ethical problems arising out of the functioning of the Institutes members in the area of Management Consultancy Service and the firm was requested to wait for the recommendations of the Sub-Committee. On December 8, 1971, Ratna issued a circular to the partners and principals of the firm setting forth guidelines on bringing the Management Consultancy Service brochures to the attention of their 1060 respective clients. Meanwhile, Ferguson Co. also referred the matter to their solicitors, and the solicitors advised that making available of printed informative material in the form of a brochure would number be in companytravention of Clauses 6 and 7 in Part I of the First Schedule to the Act or otherwise amount to professional misconduct. A few days later the Council published an exposure draft, setting forth the proposals under companysideration by the Council regarding the regulations and ethical rules in respect of Management Consultancy Services by Chartered Accountants, and invited members to send their suggestions on the proposals. It was pointed out further that the recommendations to be made by the Council would require appropriate amendments in Part I of the First Schedule to the Act which companytained rules in respect of professional misconduct. Meanwhile, Ratna had prepared a brochure relating to the Management Consultancy Service to be provided by Ferguson Co. It was stated that the brochure was intended for the use of the clients of the firm who requested information regarding such services and that it was for limited circulation only, the clients themselves being warned of that restriction. On February 19, 1973, the Council wrote to Ferguson and Co. inviting its attention to the brochure and alleging that it companytained information against the firm under Section 21 of the Chartered Accountants Act read with clauses 6 and 7 of Part I of the First Schedule to the Act, and in accordance with Regulation 11 5 b read with Regulation 12 of the Chartered Accountants Regulations 1964, the firm was required to disclose to the Council the name of the member answerable to the charge of misconduct. In reply, the firm named Ratna as the member responsible for the brochure. On April 14, 1973, Ratna submitted a written statement to the Institute denying that he was guilty of professional misconduct and he set forth a detailed statement of the reasons in support of his stand. The Council companysidered the matter in its meeting of September 13, 14 and 15, 1973 and being of prima facie opinion that Ratna was guilty of professional misconduct referred the case to the Disciplinary Committee. The Disciplinary Committee companysisted of the President, S.K. Gupta, the Vice-President, N.C. Krishnan, two members of the Institute, R.K. Khanna and Bansi S. Mehta and the Government numberinee, Ganapathi. The Disciplinary Committee gave a personal hearing on January 4, 1974, to Ratna and his companynsel. On February 14, 1974, the Disciplinary Committee submitted its report to the Council opining 1061 that Ratna was guilty of professional misconduct under clauses 6 and 7 of Part I of the First Schedule to the Act insofar as he solicited clients directly or indirectly and also advertised professional attainments of his services. In its meeting of February 16, 1974 the Council companysidered the report of the Disciplinary Committee and found that Ratna was guilty of the misconduct. In February 25, 1974, the Institute wrote to Ratna that the Council had found him guilty of professional misconduct, as charged, and that it was proposed to remove his name from the Register of Members for a period number exceeding five years in accordance with the procedure laid down in s. 21 4 of the Act. He was informed that he would be called upon to appear before the Council at its next meeting but in case he did number wish to be heard in person he was entitled to send a written representation against the proposed action. He was required to take numbere that the scope of the oral hearing for companysideration of the written representation would be restricted to the penalty proposed. Copies of the Report of the Disciplinary Committee and the findings of the Council were forwarded to him. On March 4, 1974, Ratna applied for extension of time to enable him to make his representation and the Council granted him time up to April 13, 1974, for that purpose. It may be stated at this stage that parallel proceedings were taken in the case of Behl and Bhoopatkar. The brochure was treated as information against them also, and on April 14, 1973, they sent their written statements to the Institute. Their submissions were companysidered by the Council, which being of opinion that they were prima facie guilty of misconduct, referred the matter to the Disciplinary Committee. On January 4, 1974, the Disciplinary Committee granted a full personal hearing to these two respondents, who were represented by companynsel. As in the case of Ratna, the Disciplinary Committee made its report to the Council that these two respondents were guilty of professional misconduct under clauses 6 and 7 of Part I of the First Schedule to the Act, and in its meeting on February 16, 1974 the Council held them guilty accordingly and proposed the same penalty as in Ratnas case. They were also invited to appear in person or to make a written representation against the penalty proposed before the Council. Ratna number filed W.P. No. 426 of 1974 and Behl and Bhoopatkar filed W.P. No. 428 of 1974 in the High Court of Bombay. The Writ Petitions were allowed by Lentin, J by separate orders dated March 3, 1980, on the finding that the Council should have given an opportunity to the members to represent before it against the report of the Disci- 1062 plinary Committee and that the President, the Vice-President and the two members of the Institute who were members of the Disciplinary Committee were disqualified from participating in the proceedings of the Council when it companysidered the report of the Disciplinary Committee, and that as the decision of the Council was companysequently vitiated the orders imposing penalty on the respondents were quashed and the case remanded to the Council for fresh companysideration. The Institute appealed to a Division Bench of the High Court and the appeals have been summarily rejected by separate orders dated April 16, 1980. It is apparent that in the scheme incorporated in s. 21 of the Act there are separate functionaries, the Disciplinary Committee, the Council and, in certain cases, the High Court. The companytrolling authority is the Council, which is only logical for the Council is the governing body of the Institute. When the Council receives information or a companyplaint alleging that a member of the Institute is guilty of misconduct, and it is prima facie of opinion that there is substance in the allegations it refers the case to the Disciplinary Committee. The Disciplinary Committee plays a subordinate role. It companyducts an inquiry into the allegations. Since the inquiry is into allegations of misconduct by the member, it possesses the character of a quasi-judicial proceeding. The Disciplinary Committee thereafter submits a report of the result of the inquiry to the Council. The Disciplinary Committee is merely a Committee of the Institute, with a function specifically limited by the provisions of the Act. As a subordinate body, it reports to the Council, the governing body. The report will companytain a statement of the allegations, the defence entered by the member, a record of the evidence and the companyclusions upon that material. The companyclusions are the companyclusions of the Committee. They are tentative only. They cannot be regarded as findings. The Disciplinary Committee is number vested by the Act with power to render any findings. It is the Council which is empowered to find whether the member is guilty of misconduct. Both s. 21 2 and s. 21 3 are clear as to that. If on receipt of the report the Council finds that the member is number guilty of misconduct, s. 21 2 requires it to record its finding accordingly, and to direct that the proceedings shall be filed or the companyplaint shall be dismissed. If, on the other hand, the Council finds that the member is guilty of misconduct, s. 21 3 requires it to record a finding accordingly, and thereafter to proceed in the manner laid down in the succeeding subsections. So the finding by the Council is the determinative decision as to the guilt of the member, and because it is determinative the Act requires it to be recorded. A responsibility so grave as the determina- 1063 tion that a member is guilty of misconduct, and the recording of that finding, has been specifically assigned by the Act to the governing body, the Council. It is also apparent that it is only upon a finding being recorded by the Council that the Act moves forward to the final stage of penalisation. The recording of the finding by the Council is the jurisdictional springboard for the penalty proceeding which follows. Now when it enters upon the task of finding whether the member is guilty of misconduct, the Council companysiders the report submitted by the Disciplinary Committee. The report companystitutes the material to be companysidered by the Council. The Council will take into regard the allegations against the member, his case in defence, the recorded evidence and the companyclusions expressed by the Disciplinary Committee. Although the member has participated in the inquiry, he has had numberopportunity to demonstrate the fallibility of the companyclusions of the Disciplinary Committee. It is material which falls within the domain of companysideration by the Council. It should also be open to the member, we think, to point out to the Council any error in the procedure adopted by the Disciplinary Committee which companyld have resulted in vitiating the inquiry. S. 21 8 arms the Council with power to record oral and documentary evidence, and it is precisely to take account of that eventuality and to repair the error that this power seems to have been companyferred. It cannot, therefore, be denied that even though the member has participated in the inquiry before the Disciplinary Committee, there is a range of companysideration by the Council on which he has number been heard. He is clearly entitled to an opportunity of hearing before the Council finds him guilty of misconduct. At this point it is necessary to advert to the fundamental character of the power companyferred on the Council. The Council is empowered to find a members guilty of misconduct. The penalty which follows is so harsh that it may result in his removal from the Register of Members for a substantial number of years. The removal of his name from the Register deprives him of the right to a certificate of practice. As is clear from s. 6 1 of the Act, he cannot practice without such certificate. In the circumstances there is every reason to presume in favour of an opportunity to the member of being heard by the Council before it proceeds to pronounce upon his guilt. As we have seen, the finding by the Council operates with finality in the proceeding, and it companystitutes the foundation for the penalty imposed by the Council on him. We companysider it significant that the power to find and record whether a member is guilty of misconduct has been specifically entrusted by the 1064 Act to the entire Council itself and number to a few of its members who companystitute the Disciplinary Committee. It is the character and companyplexion of the proceeding companysidered in companyjunction with the structure of power companystituted by the Act which leads us to the companyclusion that the member is entitled to a hearing by the Council before it can find him guilty. Upon the approach which has found favour with us, we find numberrelevance in James Edward Jeffs and others v. New Zealand Dairy Production and Marketing Board and others, 1967 1 AC 551 cited on behalf of the appellant. The Court made observations there of a general nature and indicated the circumstances when evidence companyld be recorded and submissions of the parties heard by a person other than the decision making authority. Those observations can have numberplay in a power structure such as the one before us. Our attention has been invited to the difference between the terms in which s. 21 3 and s. 21 4 have been enacted and, it is pointed out, that while in s. 21 4 Parliament has indicated that an opportunity of being heard should be accorded to the member, numberhere in s. 21 3 do we find such requirement. There is numberdoubt that there is that difference between the two provisions. But, to our mind, that does number affect the question. The textual difference is number decisive. It is the substance of the matter, the character of the allegations, the far-reaching companysequences of a finding against the member, the vesting of responsibility in the governing body itself, all these and kindred companysiderations enter into the decision of the question whether the law implies a hearing to the member at that stage. Learned companynsel for the appellant relies on Chandra Bhavan Boarding and Lodging, Bangalore v. The State of Mysore and Anr., 1970 2 SCR 600, where this Court found that the procedure adopted by the Government in fixing a minimum wage under s. 5 1 of the Minimum Wages Act, 1948 was number vitiated merely on the ground that the Government had failed to companystitute a companymittee under s. 5 1 a of that Act. Reference was also made to K.L. Tripathi v. State Bank of India and Others, 1984 1 SCC 43 where the petitioner companyplained of a breach of the principles of natural justice on the ground that he was number given an opportunity to rebut the material gathered in his absence. Neither case is of assistance to the appellant. In the former, the Court found that reasonable opportunity had been given to all the companycerned parties to represent their case before the Government made the impugned order. In the latter, the Court held that numberreal prejudice had been suffered by the companyplainant in the circumstances of the case. 1065 It is next pointed out on behalf of the appellant that while Regulation 15 requires the Council, when it proceeds to act under s. 21 4 , to furnish to the member a companyy of the report of the Disciplinary Committee, numbersuch requirement is incorporated in Regulation 14 which prescribes what the Council will do when it receives the report of the Disciplinary Committee. That, it is said, envisages that the member has numberright to make a representation before the Council against the report of the Disciplinary Committee. The companytention can be disposed of shortly. There is numberhing in Regulation 14 which excludes the operation of the principle of natural justice entitling the member to be heard by the Council when it proceeds to render its finding. The principles of natural justice must be read into the unoccupied interstices of the statute unless there is a clear mandate to the companytrary. It is then urged by learned companynsel for the appellant that the provision of an appeal under s. 22-A of the Act is a companyplete safeguard against any insufficiency in the original proceeding before the Council, and it is number mandatory that the member should be heard by the Council before it proceeds to record its finding. Section 22-A of the Act entitles a member to prefer an appeal to the High Court against an order of the Council imposing a penalty under s. 21 4 of the Act. It is pointed out that numberlimitation has been imposed on the scope of the appeal, and that an appellant is entitled to urge before the High Court every ground which was available to him before the Council. Any insufficiency, it is said, can be cured by resort to such appeal. Learned companynsel apparently has in mind the view taken in some cases that an appeal provides an adequate remedy for a defect in procedure during the original proceeding. Some of those cases are mentioned in Sir William Wades erudite and classic work on Administrative Law But as that learned author observes, in principle there ought to be an observance of natural justice equally at both stages, and if natural justice is violated at the first stage, the right of appeal is number so much a true right of appeal as a companyrected initial hearing instead of fair trial followed by appeal, the procedure is reduced to unfair trial followed by fair trial. And he makes reference to the observations of Megarry J. in Leary v. National Union of Vehicle Builders, 1971 1 Ch. Treating with another aspect of the point, that learned Judge said If one accepts the companytention that a defect of natural justice 1066 in the trial body can be cured by the presence of natural justice in the appellate body, this has the result of depriving the member of his right of appeal from the expelling body. If the rules and the law companybine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? Even if the appeal is treated as a hearing de numbero, the member is being stripped of his right to appeal to another body from the effective decision to expel him. I cannot think that natural justice is satisfied by a process whereby an unfair trial, though number resulting in a valid expulsion, will nevertheless have the effect of depriving the member of his right of appeal when a valid decision to expel him is subsequently made. Such a deprivation would be a powerful result to be achieved by what in law is a mere nullity and it is numbermere triviality that might be justified on the ground that natural justice does number mean perfect justice. As a general rule, at all events, I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body. The view taken by Megarry, J. was followed by the Ontario High Court in Canada in Re Cardinal and Board of Commissioners of Police of City of Cornwall, 1974 42 L.R. 3d 323. The Supreme Court of New Zealand was similarly inclined in Wislang v. Medical Practioners Disciplinary Committee, 1974 1 N.Z.L.R. 29 and so was the Court of Appeal of New Zealand in Reid v. Rowley, 1977 2 Z.L.R. 472. But perhaps another way of looking at the matter lies in examining the companysequences of the initial order as soon as it is passed. There are cases where an order may cause serious injury as soon as it is made, an injury number capable of being entirely erased when the error is companyrected on subsequent appeal. For instance, as in the present case, where a member of a highly respected and publicly trusted profession is found guilty of misconduct and suffers penalty, the damage to his professional reputation can be immediate and far-reaching. Not all the Kings horses and all the Kings men can ever salvage the situation companypletely, numberwithstanding the widest scope provided to an appeal. To many a man, his professional reputation is his most valuable possession. It affects his standing and dignity among his fellow members in the profession, and guarantees the esteem of his clientele. It is often the carefully garnered fruit of a long period of scrupulous, 1067 companyscientious and diligent industry. It is the portrait of his professional honour. In a world said to be numberorious for its blase attitude towards the numberle values of an earlier generation, a mans professional reputation is still his most sensitive pride. In such a case, after the blow suffered by the initial decision, it is difficult to companytemplate companyplete restitution through an appellate decision. Such a case is unlike an action for money or recovery of property, where the execution of the trial decree may be stayed pending appeal, or a successful appeal may result in refund of the money or restitution of the property, with appropriate companypensation by way of interest or mesne profits for the period of deprivation. And, therefore, it seems to us, there is manifest need to ensure that there is numberbreach of fundamental procedure in the original proceeding, and to avoid treating an appeal as an overall substitute for the original proceeding. Upon the aforesaid companysiderations, we are of definite opinion that a member accused of misconduct is entitled to a hearing by the Council when, on receipt of the report of the Disciplinary Committee, it proceeds to find whether he is or is number guilty. The High Court is, therefore, right in the view on this point. Accordingly, the respective findings of the Council that Ratna, Behl and Bhoopatkar are guilty of misconduct are vitiated and must be quashed. Consequently, the penalty imposed on each of them is also liable to be quashed. Our decision on the first question is sufficient to dispose of these appeals. But the appellant is anxious to obtain our opinion on the second question also as, it is said, the question is bound to arise in future in cases of disciplinary proceedings. As it was one of the points on which the High Court allowed the writ petitions, and as we have already heard full agrument on it, we proceed number to companysider the point. The question is whether the respective findings of the Council holding the three members guilty of misconduct can be said to be vitiated by bias because the members of the Disciplinary Committee participated in those proceedings. As has been pointed out, s. 17 of the Act provides for a Disciplinary Committee, companysisting of the President and the Vice-President ex-officio of the Council, who will be the Chairman and Vice-Chairman respectively of the Disciplinary Committee, and three other members of the Council, two of them 1068 being elected by the Council to the Committee, and the third being numberinated by the Central Government from amongst the persons numberinated to the Council by the Central Government. Therefore, all the five members of the Disciplinary Committee are drawn from the Council. Now the Council is vested with power under s. 21 to find whether the member is guilty of misconduct. There is numberhing in s. 21 of the Act, however, to indicate whether the members of the Disciplinary Committee should be excluded when the Council enters upon its task. The answer must be found from the general scheme of the Act and the fundamental principles of law. There can be numberdispute that the function of the Disciplinary Committee of holding an enquiry under s. 21 1 of the Act into the companyduct of the member calls for a recording of evidence by the Committee. Its duty does number end there. It must companysider the evidence and companye to its companyclusions. As s. 21 2 of the Act plainly says, it must report the result of its enquiry to the Council. In the absence of express or implied statutory intendment to the companytrary, it appears to us that the members of such a Committee would be disqualified from participating in the deliberations of the Council when it proceeds to companysider the report in order to find whether the member is guilty of misconduct. For that alone would be companysistent with the fundamental principle that justice must number only be done but must also appear to be done. The nature of the function discharged by the Council in rendering its finding is quasi judicial, and we are reminded of the observations of this Court as far back as Manek Lal v. Dr. Prem Chand, 1957 SCR 575. It is well settled that every member of a tribunal that is called upon to try issues in judicial or quasi-judicial proceedings must be able to act judicially and it is of the essence of judicial decisions and judicial administration that judges should be able to act impartially, objectively and without any bias. In such cases the test is number whether in fact a bias has affected the judgment the test always is and must be whether a litigant companyld reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must number only be done but must also appear to be done. 1069 We must remember that the President and the Vice- President of the Council and 3 members of the Council companypose the Disciplinary Committee. The President and the Vice-President do certainly hold significant status in the meetings of the Council. A member whose companyduct has been the subject of enquiry by the Disciplinary Committee ending in companyclusions adverse to him can legitimately entertain an apprehension that the President and the Vice-President of the Council and the other members of the Disciplinary Committee would maintain the opinion expressed by them in their report and would press for the acceptance of the report by the Council. To the member whose companyduct has been investigated by the Committee, the possibility of the Council disagreeing with the report in the presence of the President and the Vice-President and the other members of the Committee would so rather remote. His fears would be aggravated by the circumstance that the President would preside over the meeting of the Council, and would thus be in a position to companytrol and possibly dominate the proceedings during the meeting. We do number doubt that the President and the Vice-President, and also the three other members of the Disciplinary Committee, should find it possible to act objectively during the decision-making process of the Council. But to the member accused of misconduct, the danger of partisan companysideration being accorded to the report would seem very real indeed. The objection on the ground of bias would have been excluded if the statute had expressed itself to the companytrary. But numberhere do we find in the Act any evidence to establish such exclusion. It is true that by virtue of s. 17 3 it is obligatory that the Disciplinary Committee should be companyposed of the President and the Vice-President of the Council and three other members of the Council. While that is so, there is numberhing in the Act to suggest that the meetings of the companyncil must always be presided over by the President or the Vice-President, and that numbermeeting can be held in their absence. We find that Regulation 140 framed under the Act companytemplates that the Council may meet in the absence of the President and the Vice-President, and provides that in their absence a member elected from among the members who are present should preside. There is an element of flexibility which makes it possible for the Council to companysider the report of the Disciplinary Committee without the participation of the members of the Committee. Because of the flexibility potential in the scheme, the doctrine of necessity, to which reference has been made on behalf of the Institute, cannot companye into play. We must admit that it does appear anomalous that the President and the Vice-President of the Council should be disabled from participating in a meeting of the 1070 Council because they are bound by statute to function as the Chairman and the Vice-Chairman of the Disciplinary Committee, and were it number for the factor of flexibility which we see in the scheme, we would have been companypelled to the companyclusion that the Act implies an exclusion of the doctrine of bias. But as we have observed, numbersuch exclusion is implied by the scheme of the Act or its policy. We suggest the removal of the anomaly by suitable legislative amendment of s. 17 3 of the Act so that the companystitution of the Disciplinary Committee should number necessarily include the President and the Vice-President of the Council. It is only appropriate that due recognition should be given to the fundamental principles and accepted axioms of law. Learned companynsel for the Institute relies on Re Dancyger and Alberta Pharmaceutical Association, 17 D.L.R. 3d 206 Re Prescott, 19 D.L.R. 3d 446 Re Merchant and Benchers of the Law Society. 32 D.L.R. 3d 178 and the majority opinion in Law Society of Upper Canada v. French, 49 D.L.R. 3d 1 in support of the companytention that participation by the members of the Disciplinary Committee does number vitiate the proceedings of the Council. The principal basis on which the Canadian companyrts proceeded in upholding the validity of the meeting of the parent body, despite the participation therein of the members of the Disciplinary Committee, lay in this that the entire proceeding, that is to say the enquiry by the Committee and the subsequent companysideration of its report by the parent body, companystituted a single proceeding, and had to be distinguished from a case where the decision by a subordinate body was assailed in appeal before a superior authority. This distinction, it seems to us, can be of little assistance if full play is given to the maxim that numberman shall be a Judge in his own cause. We are impressed by the soundness of the minority opinion pronounced by that learned and distinguished Judge, Laskin, C.J.C. in Law Society of Upper Canada v. French supra decided by the Supreme Court of Canada. He observed I do number think that the issue herein falls to be decided according to whether the proceedings in Convocation are or amount to an appeal or are or amount to a review under a two-stage scheme of inquiry into allegations of professional misconduct. No doubt, characterization of the proceedings as an appeal may lend weight to the companytention of the appellant solicitor, but the principle underlying his position rises above any such formalistic approach. The principle is immanent in the ancient maxim nemo judex in causa sua, expressed by Coke in Dr. Benhams case 1610 Co. Rep. 113b, 77E.R. 646. 1071 The companyclusion reached by us has number been an easy one. The authorities on the subject have oscillated from one extreme to the other, and an analysis of the cases points at times to some rather slender element in the mosaic of facts which has influenced the outcome. There is good reason ultimately for adopting a liberal view, for as has been observed by the late Professor S.A. De Smith in his Judicial Review of Administrative Action Fourth Edition p. a report will numbermally include a statement of findings and recommendations, which may be companytroverted before the parent body and in such a case the participation of members of the sub- companymittee in the final decision may be of dubious validity. The problem is number merely one of strict law it is also one of public policy. Accordingly, we companycur with the High Court that the finding of the Council holding the respondents Ratna, Behl and Bhoopatkar guilty of misconduct is vitiated by the participation of the members of the Disciplinary Committee. Before we companyclude, we may refer to a third point raised before us, the point being whether the Council is obliged to give reasons for its finding that a member is guilty of misconduct. It seems to us that it is bound to do so. In fairness and justice, the member is entitled to know why he has been found guilty. The case can be so serious that it can attract the harsh penalties provided by the Act. Moreover, the member has been given a right of appeal to the High Court under s. 22-A of the Act. To exercise his right of appeal effectively he must know the basis on which the Council has found him guilty. We have already pointed out that a finding by the Council is the first determinative finding on the guilt of the member. It is a finding by a Tribunal of first instance. The companyclusion of the Disciplinary Committee does number enjoy the status of a finding. Moreover, the reasons companytained in the report by the Disciplinary Committee for its companyclusion may or may number companystitute the basis of the finding rendered by the Council.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 271 of 1986 From the Judgment and Order dated 31.1. 1985 of the Gauhati High Court in Cr. A. No. 66 of 1983. K. Nandy for the Appellant. K. Garg, Sunil K. Jain and Vijay Hansaria for the Respondents. The Judgment of the Court was delivered by 1041 C. Ray, J. This appeal by special leave is against the judgment and order passed in Criminal Appeal No. 66 of 1983 by the High Court of Gauhati acquiting both the accused respondents from the charges under Sec. 302 read with Sec. 34 I.P.C. as well as under Sec. 436 read with Sec. 34 of Indian Penal Code, 1860. The prosecution case in short is that on 2nd November, 1978 at about 7 p.m. two accused respondents Muhim Chandra Barkataki and Dulu Dutta came together to the shop of Nagen Dey since deceased and sprinkled and poured kerosine oil in the shop as well as on the person of Nagen Dey and then set fire. Immediately fire caught and spread over the shop as well on the body of Nagen Dey. The shop was a Guliamal grocery shop where rice, Dahl, soap, mustered oil, kerosine oil, etc goods were sold and situate at Na-Ali Road of Jorhat Town in front of M s Baruah Printers. Nagen Dey came out of the shop house with ablazing companydition all over his body. The witnesses Arun Barua, Prabin Barua and Kiron Saikia on seeing the fire rushed to the place of occurrance and put off the fire from the body of the Nagen Dey but Nagen Dey suffered extensive burnt injuries all over his body. Pradip Jyoti Sarma, Assistant Sub-Inspector of Police also came to the place of occurrence a few minutes later and he also witnessed the fire on the person of Nagen Dey as well as in the shop of Nagen Dey. Prosecution case is, further, that Nagen Dey made a dying declaration before the witnesses stating that the two accused persons namely Muhim Barkataki and Dulu Dutta set fire on his body after pouring kerosine oil. It was also the prosecution case that both the accused were found at the place of occurrence and public caught hold of the accused Muhim Barkataki red handed at the shop of occurrence whereas other accused Dulu Dutta fled away. Injured Nagen Dey was immediately removed to Jorhat Civil Hospital for treatment, but he died at the hospital. Accused Muhim Barkataki was handed over to the Police by the witness Pradip Joyti Sarma, Assistant Sub-Inspector of Police. The information of the incident was received over telephone message at 7.15 p.m. by the Officer-Incharge of Jorhat Police Station who recorded an entry in the General Diary being G.D. Entry No. 47 dated 2.11.1978 at 7.15 p.m. The Town Sub-Inspector Sri P. Khatoniar was immediately deputed to make local investigation on the spot. Sri P. Khatoniar made enquiry and investigation locally at the spot, arrested accused Muhim Barkataki at the spot and returned to police station. He then informed the facts of occurrence to the Officer-incharge of the Police Station who recorded the same under G.D. Entry No. 50 at 8.10 p.m. On 3rd November, 1978 at about 7 a.m. one Sri 1042 Montu Ch. Dey, nephew of deceased Nagen Dey lodged Ejahar Ext.5 with Jorhat Police Station. Thereafter murder and arson cases have been registered against Muhim Barkataki and Dulu Dutta. Investigation was carried on by Shri Prafulla Kumar Khatoniar. The Investigation Officer forwarded witnesses Arun Barua, and Kiran Saikia to the companyrt for recording their statements under Sec. 164 of the Criminal Procedure Code. The Judicial Magistrate Shri Dharyya Saikia recorded the statements of these two witnesses on 7.11.1978. The Sessions Judge found that the message received over telephone was an information relating to companymission of companynizable offence and same was entered into General Diary of the Police Station as Entry No. 47. On the basis of this information the investigation of the case was entrusted to the Town Sub-Inspector Shri Prafulla Kumar Khatoniar with the recording of General Diary Entry No. 47 and the Investigating Officer fairly progressed with the investigation in that very night. Subsequent information of Montu Chandra Dey on 3rd November, 1978 are numberhing but statements during the companyrse of investigation and as such those are hit by Sec. 162 of the Criminal Procedure Code. It has, therefore, been held that Exhibit 5 cannot be recoganized as the First Information Report of the occurrence. The General Diary Entry No. 47 which is proved as Ext. 7 1 , is the First Information Report of the occurrence. The Sessions Judge duly companysidered the evidences of W. 4 Arun Barua and C.W. 1 Pradip Joyti Sarma as well as the statements under Sec. 164 recorded by the Judicial Magistrate, P.W. 8 on 7.11.1978 and accepted the dying declaration made by the deceased Nagen Dey implicating the accused Muhim Barkataki and Dulu Dutta as pouring kerosine oil on his body and setting fire to his person. P.W. 6 Kiran Saikia also stated in his statement under Sec. 164 of Criminal Procedure Code before the Judicial Magistrate, that Nagen Dey, deceased made a dying declaration that these two accused persons sprinkled kerosine over the body of the deceased Nagen Dey and then set fire to him. These witnesses also proved that the accused Muhim Barkataki was caught hold of red handed at the place of occurrence whereas Dulu Dutta fled away from the place. The Sessions Judge, therefore, companyvicted both the accused under sec. 302 read with Sec. 34 of the Indian Penal Code and sentence them to rigorous imprisonment for life. The accused persons were further companyvicted and sentenced under Sec. 436 read with Sec. 34 of the Indian Penal Code and they were sentenced to suffer rigorous imprisonment for 5 years each. Both the sentences shall run companycurrently. 1043 Against this judgment and order of companyviction and sentence the accused person preferred an appeal being Criminal Appeal No. 66 of 1983 in the High Court of Gauhati. The High Court proceeded on the footing that entire evidence in the case was circumstantial as there was numbereye witness to the occurrence and the clinching circumstances in which the case according to the prosecution is proved are the circumstances relating to the dying declaration. The learned Judges held that the evidence of P.W. 4 Arun Barua who deposed to the dying declaration was wholly unreliable as there was serious infirmity in his evidence as he disputed his statement made to the Police that the three persons used to drink liquor and play cards which fact as we have observed, is very material to cast a serious doubt on prosecution version itself. The learned Judges therefore, held that the prosecution failed to prove beyond doubt the offences for which the appellants were charged. The companyviction and sentence passed against the accused persons was set aside and the appeal was allowed. There is numberdispute that the shop of deceased Nagen Dey situated by the side of Na-Ali Road was set on fire and fire was also set on the person of Nagen Dey by pouring kerosine. Eye witnesses P.W. 4-Arun Barua, P.W. 6-Kiran Saikia and W. 5-Prabin Barua came to the place of occurrence immediately on seeing the fire. It is also evident from the evidence of P.W. 4 that he and Kiran Saikia who was in the shop of P.W. 4 both came together at the place of occurrence and they tried to put out the fire by throwing dust on the body of Nagen Dey who was on fire by tearing off his dress and Kiran Saikia put the clothing on the person of deceased Nagen Dey. It is also in the evidences of P.W. 4 and C.W. 1 Pradip Joyti Sarma, Assistant Sub-Inspector, Police that the deceased Nagen Dey made a dying declaration to the effect that the accused persons Muhim Barkataki and Dulu Dutta poured kerosine oil in his shop and sprinkled kerosine oil on his person and then set on fire. It is also evident from the depositions of P.W. 4 and C.W. 1 that the accused Muhim Barkataki was caught hold red handed on the spot and he was detained there by the public while Dulu Dutta fled away from the place of occurrence. It is also evident from the G.D. Entry No. 47 i.e., telephonic message received at the Jorhat Police Station at about 7.15 p.m. on the date of occurrence that the said two men set fire to the person of Nagen Dey, deceased as well as to his Guliamal shop which is in front of Baruah Printers after pouring kerosine oil. One of the accused persons was caught hold of by local rija public while it was informed that Shri P.K. Khatoniar was investigating for local investigation after giving all entries in the diary. 1044 This is proved by Investigation Officer P.W. 7 and marked as Ext.7 1 . It also appeared that immediately after the enquiry and investigation into the incident the Town Sub- Inspector Shri Khatoniar returned to the Police Station and informed that Muhim Barkataki and Dulu Dutta entered in the Guliamal shop of Nagen Dey which was in front of Barua Printers of Na-Ali and poured kerosine oil kept in the shop for sale and set fire on it and as a result the Guliamal shop was burnt. Nagen Dey was the owner of the shop who also was set on fire. It was also recorded in the G.D. Entry that Muhim Barkataki who was caught hold of at the place by the local people has been sent to the police station. This G.D. Entry No. 50 was proved by P.W. 7 and it was marked as Ext. 7 2 . It also appears that the witnesses P.W. 4-Arun Barua, W. 5-Prabin Barua, P.W. 6-Kiran Saikia and C.W.1-Pradip Joyti Sarma who was on duty on that Na-Ali locality at that time arrived at the place of occurrence almost simultaneously and all of them found Nagen Dey out of his shop in a companyplete ablazing state all over his body. It also appears from evidences of these three witnesses Arun Barua, Kiran Saikia and Pradip Joyti Sarma that the injured Nagen Dey was companyscious and was crying out due to burning pain. It was also their evidence that the deceased Nagen Dey made a dying declaration at the place of occurrence implicating accused Muhim Barkataki and Dulu Dutta as his assailants. It is also evident from Exts. 3 and 4 that the Judicial Magistrate Shri Dharyya Saikia P.W. 8 recorded the statements of Arun Barua P.W. 4 and Kiran Saikia P.W. 6 on 7.11.1978 under Sec. 164 of the Criminal Procedure Code stating about the dying declaration made by the deceased Nagen Dey implicating that Muhim Barkataki and Dulu Dutta had set fire on him. P.W. 4 Arun Barua also in his evidence clearly testifies to this dying declaration made by the deceased Nagen Dey. Of companyrse P.W. 6 Kiran Saikia tried to companytradict his statement made before the Police as well as before the Judicial Magistrate as to the dying declaration made by the deceased Nagen Dey. He admitted in his examination-in-chief that he made a statement about this incident before the Magistrate of Jorhat Court. Exhibit 4 is his statement and Ext. 4 2 is his signature. He further stated that the Magistrate has recorded his statement. But in cross-examination he companytradicted himself by saying that he was tutored by the police to say so before the Magistrate. Even if his statement is number taken into companysideration there is a clear statement of P.W. 4 Arun Barua before the Magistrate Ext. 3 as well as his deposition which clearly companyroborates his statement before the Magistrate about the dying declaration made by the deceased implicating the two accused persons as his assailants. The companyrt of appeal below has acted 1045 illegally in discarding the evidence of P.W. 4 as well as his statement recorded under Sec. 164 of the Criminal Procedure Code by the Judicial Magistrate on the flimsy ground that it was number reliable because he companytradicted his statement made before the Police that these three persons the two accused and the deceased Nagen Dey used to take liquor and play cards. Moreover C.W. 1 Pradip Jyoti Sarma who came to the place of occurrence a few minutes after the arrival of P.W. 4 and P.W. 6 at the place of occurrence has stated in his evidence that he saw the body of the deceased under fire and the deceased is crying out of burnt pain. He implicated in his dying declaration that Muhim Barkataki and Dulu Dutta had set fire on his person after pouring kerosine oil on him. He also stated that at the place of occurrence he found that the accused Muhim Barkataki was caught by the public and he was being assaulted. He further stated that to save Muhim Barkataki from assultant he handed him over to the Police Constable who was with him. He also deposed that Nagen Dey has sense and he was speaking. There was numbercross- examination of this witness as to the dying declaration made by the deceased. This witness further stated that he came to the Thana in the night and told the inspector about the incident. He also stated that he did number know whether O.C. recorded this in the General Diary or number. P.W. 2 Dr. Jibakanta Borah who hold post-mortum on the body of the deceased has stated in his evidence that a person sustaining burnt injuries of such nature may have companysciousness for some time before death. It cannot, therefore, be ruled out that the deceased Nagen Dey was companyscious in spite of the severe burnt injuries on his person and he companyld speak and companyld make dying declaration as testified to by the witnesses P.W. 4, and C.W. 1. It has been tried to be urged before us by the learned companynsel on behalf of the respondents that there is numberevidence to show that the deceased Nagen Dey made a dying declaration as has been alleged as the General Diary Entry was number produced to show such statement of C.W. 1 about the dying declaration recorded therein. Moreover even if such a dying declaration has been made the same being number companyroborated cannot be taken into companysideration by the companyrt in companyvicting the accused respondents. It has been further submitted that the companyrt of appeal below rightly discarded the alleged dying declaration as being number companyroborated by any other evidence and duly acquitted the accused persons. We have companysidered and appraised thoroughly the evidence on record and on an overall assessment of the same, we hold that the prosecution has proved beyond reasonable doubt, the charges framed 1046 against them. The order of acquittal passed by the High Court is liable to be set aside for the reasons stated here after. Firstly, eye witnesses P.Ws. 4, 5, 6 and C.W. 1 undoubtedly arrived at the place of occurrence immediately on seeing the fire in the grocery shop of the deceased Nagen Dey at about 7 p.m. on 2.11.1978. All these witnesses have seen that the shop is ablaze and there is fire on the person of Nagen Dey. It is also the specific evidence of P.W. 4 Arun Barua and C.W. 1 Pradip Jyoti Sarma, A.S.I. at Jorhat Police Reserve deputed by the Jorhat Thana at Jorhat Town in law and order duty on that day. All these eye witnesses P.W. 4 and C.W. 1 also stated that Nagen Dey was crying a lot in pain out of burnt injuries and he stated clearly that the accused persons Muhim Barkataki and Dulu Dutta poured kerosine oil on him and set fire on his body. So far as depositions of P.W. 4 and C.W. 1 are companysidered there is numbercross-examination on this point. Further more, P.W. 4 and W. 6 made statements Exts. 3 and 4 under Sec. 164 of Criminal Procedure Code before the Chief Judicial Magistrate of Jorhat P.W. 8 to the effect that the deceased Nagen Dey made a dying declaration implicating the accused persons as his assailants. This recording of the statements of P.W. 4 and P.W. 6 was proved by the deposition of the Addl. Chief Judicial Magistrate at Jorhat, Shri Dharyya Saikia P.W. 8 . Of companyrse, P.W. 6 Kiran Saikia tried to companytradict his statement made before the Chief Judicial Magistrate. As regards the evidence of C.W. 1 it has been tried to be companytended that his statement before the O.C. of the Police Station that the deceased made a dying declaration cannot be accepted as there is numberhing to show that this was recorded in the G.D. Entry. This statement cannot be accepted inasmuch as the learned Sessions Judge has assigned companyent reasons as to why Pradip Jyoti Sarma was examined as a companyrt witness under the provisions of Sec. 311 of the Code of Criminal Procedure. It has been clearly found that Shri Sarma was an independent and disinterested witness and he was found to be reliable and trustworthy. It has been also found that Shri Pradip Jyoti Sarma is an important witness of the case and his examination was for the just decision of the case and his evidence has full companyroboration with another independent and disinterested witness namely Arun Barua who is also found to be trustworthy and reliable witness. The evidence of Shri Pradip Jyoti Sarma cannot be under-estimated merely because he is a police officer. The Sessions Judge also stated in his order that the reasons for examining him as a companyrt witness had been elaborately recorded in the order-sheet dated 17.2.1982 and 22.3.1983. Therefore, companysidering this finding of the Sessions Judge we hold that there is numberinfirmity in the findings of the Sessions Judge in treating Pradip Jyoti 1047 Sarma as a companyrt witness under the provisions of Sec. 311 of the Code of Criminal Procedure. There is numbercriticism regarding the evidence of P.W. 4 on behalf of the respondents as to why his testimony regarding the dying declaration shall number be taken into companysideration apart from the evidence of C.W. 1 Pradip Jyoti Sarma. Moreover it is evident from Exts. 3 and 4, the statements of P.Ws. 4 and 6 recorded under Sec. 164 of the Code of Criminal Procedure by the Addl. Judicial Magistrate, Jorhat on 7.11.1978 that these two witnesses P.Ws. 4 and 6 clearly stated about the dying declaration made by Nagen Dey implicating both the accused as his assailants. Along with this testimony of P.W. 4 and C.W. 1 that Muhim Barkataki was caught hold red handed on the spot and was detained by the public while Dullu Dutta fled away from the place of occurrence. All these clearly go to prove the prosecution case beyond any reasonable doubt and it leads to the only companyclusion that these two accused persons poured kerosine oil in the shop as well as sprinkled kerosine oil on him and set fire on the deceased as well as to the shop. It has been tried to be companytended that the dying declaration as referred to by P.W. 4 in his deposition has number been companyroborated by any independent witness and as such the same cannot be relied upon in companyvicting the accused. In support of this submission reference has been made to the decision reported in Ramnath Madho Prasad Ors. State of Madhya Pradesh, A.I.R. 1953 S.C. 420 wherein it has been observed It is settled law that it is number safe to companyvict and accused merely on the evidence furnished by a dying declaration without further companyroboration because such a statement is number made on oath and is number subject to cross-examination and because the maker of it might be mentally and physically in a state of companyfusion and might be well drawing upon his imagination while he was making the declaration. It is in this light that the different dying declaration made by the deceased and sought to be proved in the case have to be companysidered. This observation has been overruled being in the nature of obiter dicta by this Court in a subsequent decision in Khushal Rao v. State of Bombay, 1958 S.C.R. 552. The same view was taken by this Court in the case of Kusa Ors. v. State of Orissa, A.I.R. 1980 S.C. 559 at 562 para 9. It is pertinent to refer to the observation of this Court on this point made in State of Assam v. Muaizuddin Ahmed, 1983 2 C.C. 14 at 19 para 10 which are in the following terms 1048 Thus, the law is number well settled that there can be companyviction on the basis of dying declaration and it is number at all necessary to have a companyroboration provided the companyrt is satisfied that the dying declaration is a truthful dying declaration and number vitiated in any other manner. It has been observed by this Court in Jayarajl v. State of Tamil Nadu, A.I.R. 1976 S.C. 1519 at 522 para 16 which reads When the deponent while making his dying declaration was in severe bodily pain because of stab injuries in the abdoman and words were scare, his natural impulse would be to tell the Magistrate, without wasting his breath on details as to who stabed him. The very brevity of the dying declaration, in the circumstances of the case, far from being a suspicious circumstance, was an index of its being true and free from the taint of tutoring, more so when the substratum of the dying declaration was fully companysistent with the occular account given by the eyewitness. In the instant case we have carefully companysidered the evidences of P.W. 4 as well as of C.W. 1 and we are clearly of the opinion that the deceased Nagen Dey made the dying declaration in question clearly implicating the two accused persons as his assailants. The dying declaration made by the deceased while he was suffering severe pain from grievous injuries is truthful and reliable. Therefore, on an overall as sessment of evidences recorded particularly the evidence of P.W. 4 and C.W. 1 and also the statements recorded under Sec. 164 of Criminal Procedure Code Exts. 6 and 4, we find that the charges under Sec. 382/34 and Sec. 436/34 of the Indian Penal Code, 1860 has been proved by the prosecution beyond reasonable doubt against the two accused persons. They were rightly companyvicted by the Sessions Judge and sentence to rigorous imprisonment for life under Sec. 302/34 P.C. and also to rigorous imprisonment for 5 years under Sec. 436/34 of the Indian Penal Code. Both the sentences will run companycurrently.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 3165 of 1981. From the Judgment and Order dated 20.11.1980 of the Delhi High Court in Writ Petition No. 1632 of 1980. K. Ramamurthy, M.A. Krishnamurthy and Miss Kuttu Bansilal for the Appellant. C. Talukdar and M.C. Thinner for the Respondents. The Judgment of the Court was delivered by SEN, J. The short point involved in this appeal by special leave from a judgment and order of the Delhi High Court dated November 20, 1980 dismissing in limine the writ petition filed by the appellant, is whether the appellate Order passed by the Director-General, Border Roads Organisation dated October 14, 1980, is in companyformity with the requirements of r. 27 2 of the Central Civil Services Classification, Control Appeal Rules, 1965 Rules for short which have been made applicable to the personnel of the Border Roads Organisation. The facts are that the appellant was appointed as Supervisor Barracks Stores Grade I attached to 60 Road Construction Company, General Reserve Engineering Force on probation for a period of two years by an order dated July 7, 1976. Before the expiry of the probationary period, the Chief Engineer project Dante by an order dated June, 24, 1978 terminated the services of appellant. The order of termination however companyld number be served on the appellant as he absented himself without leave. Thereupon, the Officer companymanding by a movement order dated June 27, 1978 transferred the appellant to 19 Border Roads Task Force. On July 1, 1978 the Officer Commanding forwarded the order of termination issued by the Chief Engineer, but on representation by the appellant, the Director-General, Border Roads Organisation by order dated November 17, 1978 cancelled the order of termination presumably on a misapprehension that the period of probation having expired, numberorder of termination companyld be made. He however directed the taking of disciplinary action against the appellant as a deserter since he had absconded from service to evade the service of the order of termination. After a regular departmental inquiry, the appellant was served with a show cause numberice under Article 311 2 of the Constitution and after companysidering the representation made by him, the Chief Engineer Project , Dante imposed on the appellant the punishment of removal from service in exercise of the powers companyferred by r. 12 read with r. 11 VIII of the Rules with effect from June 10, 1980. Against the order of removal, the appellant preferred an appeal under r. 23 of the Rules before the Director-General, Border Roads Organisation. The Director- General by the impugned order dismissed the appeal observing After thorough examination of the facts brought out in the appeal, the DGBR is of the opinion that the punishment imposed by the CE P DANTAK vide his Order No. 10527/762/EIB dated 24 June 78 was just and in accordance to the Rules applicable. He has accordingly rejected the appeal. Having heard the parties, we are satisfied that in disposing of the appeal the Director-General has number applied his mind to the requirements of r. 27 2 of the Rules, the relevant provisions of which read as follows 27 2 . In the case of an appeal against an order imposing any of the penalties specified in Rule 11 or enhancing any penalty imposed under the said Rules, the appellate authority shall companysider. a whether the procedure laid down in these rules has been companyplied with and if number, whether such numbercompliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice b whether the findings of the disciplinary authority are warranted by the evidence on the record and c whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe and pass orders- companyfirming, enhancing, reducing or setting aside the penalty or remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case. The word companysider in rule 27 2 implies due application of mind. It is clear upon the terms of r. 27 2 that the appellate authority is required to companysider 1 whether the procedure laid down in the Rules has been companyplied with and if number, whether such number-compliance has resulted in violation of any provisions of the Constitution or in failure of justice 2 whether the findings of the disciplinary authority are warranted by the evidence on record and 3 whether the penalty imposed is adequate and thereafter pass orders companyfirming, enhancing etc. the penalty, or may remit back the case to the authority which imposed the same. Rule 27 2 casts a duty on the appellate authority to companysider the relevant factors set forth in cls. a , b and c thereof. There is numberindication in the impugned order that the Director-General was satisfied as to whether the procedure laid down in the Rules had been companyplied with and if number, whether such numbercompliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. We regret to find that the Director-General has also number given any finding on the crucial question as to whether the findings of the disciplinary authority were warranted by the evidence on record. It seems that he only applied his mind to the requirement of cl. c of r. 27 2 , viz. whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being number-compliance with the requirements of r. 27 2 of the Rules, the impugned order passed by the Director-General is liable to be set aside. It is number the requirement of Art. 311 2 of the Constitution of India or of the Rules of natural justice that in every case the appellate authority should in its order state its own reasons except where the appellate authority disagrees with the findings of the disciplinary authority. In State of Madras v. A.R. Srinivasan, a Constitution Bench repelled the companytention that the State Governments order companypulsorily retiring the delinquent from service was bad as it did number give reasons for accepting the findings of the inquiring tribunal and observed as follows Mr. Setalvad for the respondent attempted to argue that the impugned order gives numberreasons why the appellant accepted the findings of the Tribunal. Disciplinary proceedings taken against the respondent, says Mr. Setalvad, are in the nature of quasi-judicial proceedings and when the appellant passed the impugned order against the respondent, it was acting in a quasi- judicial character. That being so, the appellant should have indicated some reasons as to why it accepted the findings of the Tribunal and since numberreasons are given, the order should be struck down on that ground alone. We are number prepared to accept this argument. In dealing with the question as to whether it is obligatory on the State Government to give reasons in support of the order imposing a penalty on the delinquent officer, we cannot overlook the fact that the disciplinary proceedings against such a delinquent officer begin with an enquiry companyducted by an officer appointed in that behalf. That enquiry is followed by a report and the Public Service Commission is companysulted where necessary. Having regard to the material which is thus made available to the State Government and which is made available to the delinquent officer also, it seems to us somewhat unreasonable to suggest that the State Government must record its reasons why it accepts the findings of the Tribunal. It is companyceivable that if the State Government does number accept the findings of the Tribunal which may be in favour of the delinquent officer, and propose to imposes a penalty on the delinquent officer, it should give reasons why it differs from the companyclusions of the Tribunal, though even in such a case, it is number necessary that the reasons should be detailed or elaborate. But where the State Government agrees with the findings of the Tribunal which are against the delinquent officer, we do number think as a matter of law, it companyld be said that the State Government cannot impose the penalty against the delinquent officer in accordance with the findings of the Tribunal unless it gives reasons to show why the said findings were accepted by it. The proceedings are, numberdoubt, quasi-judicial but having regard to the manner in which these enquiries are companyducted, we do number think an obligation can be imposed on the State Government to record reasons in every case. In Som Datta Datta v. Union of India Ors, a Constitution Bench of this companyrt rejected the companytention that the order of the Chief of the Army Staff companyfirming the proceedings of the Court- Martial under s. 164 of the Army Act and the order of the Central Government dismissing the appeal of the delinquent under sec. 165 of the Army Act were illegal and ultra vires as the did number give reasons in support of the orders, and summed up the legal position as follows Apart from any requirement imposed by the statute or statutory rule either expressly or by necessary implication, there is numberlegal obligation that the statutory tribunal should give reasons for its decision. There is also numbergeneral principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision. To the same effect is the decision in Tara Chand Khatri Municipal Corporation of Delhi Ors. Accordingly, the appeal must succeed and is allowed. The impugned order passed by the Director-General, Border Roads Organization is set aside and he is directed to dispose of the appeal afresh after applying his mind to the requirements of r. 27 2 of the Central Civil Services Classification, Control Appeal Rules, 1965, with advertence to the points raised by the appellant in his petition of leave. There shall be numberorder as to companyts.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 4392 NCE of 1984. From the judgment and Order dated 11.10.1984 of the Himachal Pradesh High Court in E.P. No. 7 of 1982. P. Bansal K.C. Dua and N.N. Aggarwal for the Appel- lant. S. Krishnamurthy Iyer V.C. Mahajan K.R. Nagaraja and S. Hegde for the Respondent. The Judgment of the Court was delivered by MISRA, J. The present appeal by special leave is directed against the judgment of the learned Single Judge of the High Court of Himachal Pradesh at Simla dated 11th October 1984 declaring the election of the appellant as void under section 100 1 b of the Representation of People Act 1951 hereinafter referred to as the Act . Pursuant to a Notification dated 17th of April 1982 under sub-section 2 of section 15 of the Act calling upon all the assembly companystituencies in the State to elect members of the Legislative Assembly in accordance with the Act and the rules framed therein a number of persons filed their numberination papers from 46 Nagrota Constituency. After scrutiny there remained only 4 companytestants in the field. The appellant Shri Ram Chand Bhatia was sponsored by Bhartiya Janata Party Shri Hardyal the respondent was the official numberinee of Congress I Party Shri Kanshi Ram was a Janata Party candidate and Shri Vidhi Chand was the official numberinee of the Communist Party of India. The appellant was declared elected to the Himachal Pradesh Legislative Assembly by a margin of 3364 votes. Shri Hardyal the respondent was the next rival candidate. Shri Kanshi Ram Janata Party candidate secured 1049 votes while Shri Vidhi Chand secured 1889 votes. The respondent filed an election petition challenging the election of the appellant under section 81 of the Act on the ground that Shri Kanshi Ram Janata Party candidate companyspired with the appellant and other persons to get printed posters like the one annexed to the said petition as Annexure PA companytaining false statement of facts assailing the personal character of the election petitioner Shri Hardyal and distributed the same during the election period with the object of prejudicially affecting the prospects of election of Shri Hardyal. me poster annexed to the petition as Annexure PA later on exhibited as Pl in the companyrse of the trial of the case is the bone of companytention in the election petition. It will be relevant to extract the relevant paragraphs of the Election Petition to bring out the points involved in the case That Shri Virendar Advocate of Kangra Kali Dass Pradhan Massal Panchayat Shri Ram Chand Bhatia respondent Kanshi Ram Janata Party F candidate and Shri Kidar Nath Bassi who was election incharge in the Constituency for B.J.P. joined hands amongst themselves and started a vilification campaign against the character and companyduct of the petitioner. They came out with a poster like Anne w re PA allegedly purported to have been published by Shri Parma Nand brother of Shri Kanshi Ram numbere the less as would be clear from the paragraphs hereinafter companytained that it was the respondent who was instrument in preparing the draft as well as getting the posters printed in the name of Shri Parma Nand. 4. mat these posters came out for the first time in the Constituency during the last week of March 1982. However whispering campaign assessinating character and companyduct of the petitioner had started by the respondent in companylusion and companynivance with Shri Kanshi Ram Janata candidate. Shri Kanshi Ram the Janata Candidate is the Pardhan of Gram Panchsyat Pathiar and the respondent immediately before his election was also Pradhan of Gram Panchayat Amtrar and both of them have close relations with each other since long time back. That the companytents of the poster and facts stated therein are false to the knowledge of the respondent and the respondent does number believe these facts to be true. m e bare perusal of Annexure PA would show that the companytents are in relation to the personal character and companyduct of the petitioner. These statements of facts companytained in Annexure PA are number only published and circulated through out the companystituency by the companysent of the respondent but as a matter of fact these posters have been got printed and circulated by the respondent himself surreptitiously in the name of Shri Parma Nand. me companytents of this poster malign the companyduct of the petitioner as an L.A. and Minister in addition to his personal character. That the companytents of the poster at Annexure PA companytain appeal to the voters to refrain from voting in favour of the petitioner on the ground of caste and companymunity which has prejudicially affected the election of the petitioner. 7. mat the respondent through the companytents of Annexure PA has actually promoted feelings of enmity and hatred between the voters of the companystituency on the grounds of caste and companymunity with a view to prejudicially affect the election of the petitioner. The Election Petition thereafter refers to the various meetings held in the companystituency wherein the said posters were read out and distributed by the respondent his election agent as well as B.J.P. workers with the companysent of the respondent. The Election Petition was companytested on grounds inter alia that appellant was in numberway party to bring out the poster Annexure PA which clearly shows that it was issued by one Parma Nand Pathiar the brother of Shri Kanshi Ram after having got it printed at Modern Press at Nagrota that poster like Annexure PA appeared in the companystituency during the last week of March when there was only a possibility that election might be held in June 1982 that respondent had numberconnection with Shri Kanshi Ram who in fact opposed the appellant in the election and was himself a candidate on behalf of the Janata Party that Annexure PA in numberway tranished the personal character of the election petitioner and that it only related to the political companyduct of the petitioner - respondent as an M.L.A. and Minister during the period of 15 years from 1967 onwards when he was elected as an M.L.A. for the first time that there was numberappeal in the poster Annexure PA that the voters should refrain from voting in favour of the respondent on the ground of caste and companymunity and that in fact all the companytesting candidates except Shri Vidhi Chand belong to the same caste and companymunity that the companytents of Annexure PA cannot be said to promote the feelings of enmity and hatred between the voters of the companystituency on the ground of caste and companymunity. The appellant also denied calling of some of the meetings in the companystituency on various dates. He also denied the printing or the publication or distribution of the poster in the companystituency by him or his agent or any other person with his companysent. The allegations of the parties gave rise to the following six issues Whether Shri Kanshi Ram who was a candidate in the election is a necessary party to the petition in view of the allegations made in paras 3 4 and 19 of the Election Petition? If so what is its effect? O.P.R. Whether the companytents of Annexure PA fall within the definition of companyrupt practices as defined under section 123 3 3A and 4 of the Representation of the People Act? O.P. Parties. Whether the respondent his agent or any other person with his companysent published or distributed himself through his agent or any other person with his companysent annexure PA as alleged in the Election Petition? O.P.P. Whether the respondent his agent or any other person with his companysent appealed to the voters to vote in his favour and to refrain from voting in favour of the petitioner on the basis of the caste and companymunity as companytained in the Election Petition? If so what is its effect? O.P.P. Whether the respondent through the companytents of Annexure PA actually promoted feelings of enmity and hatred between the voters of the companyatituency on the grounds of caste and companymunity with a view to prejudicially affect the election of the petitioner? If so what is its effect? O.P.P. Whether the companytents of Annexure PA pertain to the personal character and companyduct of the petitioner and were even false to the knowledge of the respondent and he did number believe the same to be true? if so what is its effect? O.P.P. Issue No. 1 was treated as preliminary issue at the request of the companynsel for the parties. After hearing the arguments on the preliminary issue the same was decided against the appellant holding that Shri Kanshi Ram was number a necessary party to the Election Petition. m e remaining issue Nos. 2 3 5 and 6 being interconnected were disposed of together. The learned Judge held that the companytents of Annexure PA pertain to the personal character and companyduct of the petitioner. He further found that the appellant had distributed the offending poster. The learned Judge however refrained from giving any finding on the question whether his election agent or any other person with his companysent had distributed the said poster. As regards the printing of the offending poster the learned Judge found that even if it was number proved that the poster in question was printed at the instance of the appellant or his election agent the offence of companyrupt practice is established if it is proved that the appellant himself had distributed the offended poster. On these findings he allowed the Election Petition and declared the election of the appellant as void. The appellant feeling aggrieved by the impugned order of the learned Single Judge has approached this Court by Special leave. Before dealing with the points urged before us we would like to refer to the well established principle in dealing with the charge of companyruption in an Election Petition. A plea in an Election Petition that a candidate or his election agent or any other person with his companysent has resorted to companyrupt practice raises a grave charge proof of which results in disqualification from taking part in election of six years. The charge in its very nature must be established by clear and companyent evidence by those who seek to prove it. The companyrt does number hold such a charge proved merely on preponderance of probability. The companyrt requires that the companyduct attributed to the offenders is proved by evidence and is established beyond reasonable doubt. Section 123 of the Representation of People Act does number stop a man from speaking. It merely prescribes companyditions which must be observed if he wants to enter Assembly or Parliament. The right to stand as a candidate and companytest an election is number a companymon law right. It is a special right created by Statute and can only be exercised on the companyditions laid down by the statute. mis Court in vi Prasad v. Malluram Singhania and others 1969 3 S.C.C. 595 dealing with the companyrupt practice observed It must be remembered that the proceedings involving proof of companyrupt practices are of a quasi criminal nature and it was for the appellant to prove beyond doubt all the necessary facts which would establish the companymission of the companyrupt practices that have been alleged in the Election Petition. Corrupt practice has been dealt with in section 123 of the Act. In the instant case we are companycerned with companyrupt practices as defined in section 123 3 and 4 . It will be relevant at this stage to refer to the provisions insofar as they are relevant for the purpose of this case. The relevant provisions are quoted below Section 123 3 3A 4 123 3 The appeal by a candidate or his agent or by any other person with the companysent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion race caste companymunity or language . . . . . . . . . . . . . . . . . . . . . . for the furtherance of the prospects of the election of that candidate or for prejudically affecting the election of any candidate . . . . . . . . . . . . . . . . . . . . . . . . . 3A The promotion of or attempt to promote feelings of enmity or hatred between different classes of the citizens of India on grounds of religion race caste companymunity or language by a candidate or his agent or any other person with the companysent of a candidate or his election agent for the furtherance of the prospects of the election of the candidate or for prejudicially affecting the election of any candidate. The publication by a candidate or his agent or by any other person with the companysent of a candidate or his election agent of any statement of fact which is false and which he either believes to be false or does number believe to be true in relation to the personally character or companyduct of any candidate or in relation to the candidature or withdrawal of any candidate being a statement reasonably calculated to prejudice the prospects of that candidate s election. The respondent had to satisfy the companyditions companytemplated in sub-section 3 and 4 of section 123 to bring home his charge of companyrupt practice against the appellant. As the charge of companyrupt practice amounts to a criminal charge it has to be dealt with like a quasi- criminal proceedings. As the fate of this appeal hinges upon the companytents of the offended poster it will be appropriate at this stage to extract the companytents. An English translation of the companytents of the document is given below N O T I C E One has one s own view-point Fifteen years 20-Point programme of Shri Hardyal and reply thereto by Parmanand keeping in view Janata Party candidate Chaudhary Kanshi Ram Ex- serviceman Pathiar. Like Hardyalji I will never say that I have Raj-Yog on my forehead destined to rule and I have number acquired this position because of your votes. Like Hardyalji I will also number say that the children of Harijans and Ghirth companymunity do number have brains so I do number employ them in my office. I will rather establish the fact that even the children of Harijans and Ghirths have brains and given opportunity they can also work like the children of others. While Shri Hardyalji was Forest Minister 1700 boys were employed in Dhaulandhar Project and 300 boys were recruited as Forest Guards. Besides boys were also employed in Transport Electricity Agriculture Hospital and as Patwaris. We want to ask it from Sh. Hardyal as to how many boys have been employed from Nagrota companystituency. As Forest Minister Mr. Hardyal has discontinued Chuharam of the forest and eleminated the income of village Panchayats. Why so? We want to ask it from Mr. Hardyal as to how many persons of Nagrota companystituency have been appointed as Gazetted Officers during his 15 years tenure as M.L.A. and Minister. Had Mr. Hardyal provided employment to 5 boys per Panchayat per year during his 15 years tenure as M.L.A. and Minister two thousand children of Nagrota companystituency would have been employed by number and there would have been numberunemployment in Nagrota area. Every party while in power will companystruct roads dispensaries bridges and schools in villages because there is provision for such things in the companystitution. Mr. Hardyal is misleading the innocent village folks by saying that he had done all that. This is all false. I want to ask it from the people of Nagrota that an outsider has been befooling the people for 15 years on the plea of RaJ Yog and even in the capacity of MLA he has been living outside the area of Nagrota in a splendid house worth Rs.2 lacs at Darhi and thus grinding his own axe. Why so? 9. May I ask if Chaudhary Hardyal being a Ghirth MLA companyld number find place to stay in the house of some Ghirth or the person of any other companymunity? For the last 15 years we have been seeing him staying alongwith his car with green flag at the house of one Amirzada Aristocrat Seth Saran Dass who is the duplicate of Mr. Hardyal at Nagrota. Seth Saran Dass. ---------------- I am a son of a farmer and labourer. What are the difficulties of farmers and labourers I will manage to get them removed by the Govt. Like Hardyalji I will number try to deceive any one. If anybodys work would be worth doing I shall definitely do that and if that may number be possible for me to do I will tell that the work cannot be done. I will never stay at the house of Seth Saran Dass rather I would go to the house of some poor man and will help him minimise his sufferings. Like Hardyalji I will number go to the house of a poor at the time when he is dead. I will go to the house of poor arrange or his medical treatment provide him with medical treatment provide him with medical aid in hospital and will get the money arranged. But I will number do like Hardyalii who visited the house of late Bararu Ram very poor person of Mauza Sarialakkar Tansutra Tikka Pathiar who died without medical aid on the day of Kappar Dhulai and participated in the meals of shok Saradh in order to befool the people. Like Hardyalji I will also number visit the people on the occasion of marriages etc. If I visit such places in my capacity as an M.L.A. then naturally 40/50 other persons will also gather there and that will add to the expenses of the persons celebrating the marriage. But, of companyrse, if someone invites me before marriage I will go there and will help him in making up the deficiency, if any. I will never try to befool the poor people as Mr. Hardyal has deceived a very poor old man. Five years ago an old man gave an application to Mr. Hardyal to the effect that he was a very poor man and his son was a matriculate and that Mr. Hardyal should help in providing a job to the boy. Three years thereafter that boy died. When the time to seek votes came, Mr. Hardyal put his hand on the shoulders of the old man and said that he was arranging for the immediate arrival of the appointment orders of his son. Interviews for the posts of Patwaris were held on 30.1.1982 at Dharamsala. Interview cards were issued to 125 boys of every Tehsil, that is to say that 500 boys were called for interview from 4 Tehsils, but only 7 cards were issued to the boys of Nagrote companystituency. Mr. Hardyal has got it done deliberately because Mr. Hardyal wanted that the seats in the share of Nagrota companystituency should go to Pt. Sant Ram and Sat Mahajan. Panchayat Sangathan of Nagrota Block had passed a resolution 2-1/2 years back that Bador should be made a Sub Tehsil. During the Janata regime, Shanta Kumarji had ordered to establish Sub Tehsils at Kundia. Baijnath, Fatehpur Nurpur , Bangana Una , Amb Una , Badoh Nagrota , Kotkhal etc. All other Sub Tehsils have since been established but the establishment of Badoh Sub Tehsil was withheld by Mr. Hardyal with the view that he may inaugurate its inception when the elections are near and thus mislead the innocent village folks that he has established the Sub Tehsil. On 18th January, 1981 Ghirth Mahasabha had demanded from the Centre to open recruiting offices of Air Force and Navy at Nagrota but Chaudhary Hardyal had flatly refused to support this demand. Why so? Chaudhary Hardyal has flatly refused to support the demands pertaining to the quota of Backward classes but he managed to obtain admission In the medical companylege for his company against a seat of backward classes. Why company 20. 15 years ago Mr. Hardyal was the President of the Jan Sangh Group of the Tea Garden Trade Union, and Joined the Congress after shifting his loyalty. It is for this reason that he does number help the village people to secure the employment. He helps only the children of rich people, that too outsiders. The lands have been given to the tenants on the basts of the provisions of the Constitution of India. Mr. Hardyal has been misleading the innocent people saying that It lo he who has provided them with lands, It is all false. I earnestly wish the success of Janata Party candidate Mr. Kanshi Ram through your all possible efforts. Parma Nand R o Pathiar Halqa Nagrota, Bagwan. Modern Press, Nagrota So far as a charge of companyrupt practice within the meaning of sub-section 3 of section 123 is companycerned there Is number much difficulty, The appellant and respondent both belong to the same caste and companymunity and the companytents of the offending poster does number indicate that the voters were asked to refrain from voting in favour of the respondent on the ground of caste. All that it companytains is that although respondent belongs to the same companymunity he has got scant regard for his caste and companymunity people. This can hardly mean that the poster Incites the voters who were mostly of the same companymunity from refraining from voting In favour of the respondent on the ground of caste companymunity. The real difficulty arises with regard to the charge of companyruption as defined tn sub-section 4 of section 123. In order to make out the charge of companyruption under sub-section 4 , the election petitioner has to show that 1 the impugned statement of facts was published by a candidate or his agent or by any other person with the companysent of the candidate or his agent ii that the statement was false and which the maker either believes to be false or does number believe to be true iii that the statement relates to the personal character of a candidate and iv that the statement was reasonably calculated to prejudice the prospects of the other candidates election. All the aforesaid ingredients had to be established before an election petitioner can succeed on the charge of companyrupt practice. Now we proceed to deal with the points raised on behalf of the parties. The first companytention raised by the learned companynsel for the appellant is that the Election Petition was liable to be dismissed in view of section 82 b of the Act for number impleading Kanahi Ram who was a companytesting candidate and against whom allegations of companyrupt practice had been mate. The learned Single Judge however overruled this objection on the ground that the allegation of companyrupt practice, If any, made against Kanshi Ram pertained to a period prior to his becoming a candidate and as such It will number attract section 82 b of the Act, The impleadment of a candidate against whom a charge of companyrupt practice has been mate, as a party is necessary only when the charge of companyrupt practice was made against a candidate. Section 79 b of the Act defines candidate, It reads as under 79 b candidate means a person who has been or claims to have been duly numberinated as a candidate at any election. The position was however different before the Election Law Amendment in 1975 and the definition of a candidate as provided in section 79 b prior to Its Amendment in 1975 was as under 79 b candidate means a person who has been or claims to have been duly numberinated as a candidate at any election and any such person shall be deemed to have been a candidate as from the time when, with the election In prospect, he began to hold himself out as a prospective candidate. Unless the allegations made against Kanshi Ram about companyrupt practice were at a time when he was numberinated as a candidate, clause b of section 82 is number attracted. The next companytention raised on behalf of the learned companynsel for the appellant is that the necessary allegations which would satisfy the requirement of sub section 4 of section 123 have number been made and therefore the Election Petition was liable to be dismissed on this score alone. We have perused the Election Petition and in our opinion all the necessary facts to companystitute a companyrupt practice within the meaning of sub section 4 have been made out and the Election Petition cannot be dismissed on this ground. This leads us to the important question as to whether the ingredients of sub-section 4 of section 123 had been satisfied in the instant case to make out a charge of companyrupt practice. One of the ingredients of sub-section 4 of section 123 is that the statement of the offending document must be false and the person making it either believes it to be false or does number believe it to be true in relation to the personal character or companyduct of the candidate. The learned Judge has observed in the judgment as follows I have already companycluded that the posters like P.1 companytain statements of facts which are false and number believed to be true by the respondent, in relation to the personal character and companyduct of the petitioner. On a perusal of the judgment we find numbersuch finding recorded by the learned Judge in the earlier part of his judgment. This appears to be under some misapprehension. The learned Judge has referred to the companytents of the impugned poster but the companyrt has got to record its own finding whether the statements of facts about the personal character of the respondent was false to the knowledge of the appellant or in any case believed by him to be false and number true. In the absence of a finding on this requirement of sub-section 4 , the appellant companyld number be held to have companymitted a companyrupt practice within the meaning of section 123 4 of the Act. The learned Judge, in our opinion, was number justified by assuming that he had already recorded a finding on this aspect. The next question for companysideration is whether the companytents of the impugned document attack the personal character of the respondent or only the political character of the respondent. The requirement of sub-section 4 of section 123 is that the companytent of the impugned document should relate to the personal character and number to the political character. The law is well settled. Adverse criticism however severe, however undignified, ill mannered, however regrettable it might be, in the interest of purity and decency of public life, in relation to the political views, position, reputation or action of a candidate would number bring it within the mischief of the statute. What is objectionable is a false statement of fact and number a false statement of opinion however, unfounded or unjustified. A distinction has been drawn between the personal character or companyduct of the candidate and his public or political character and companyduct. Law postulates that if a false statement is made in regard to the public or political character of the candidate it would number companystitute a companyrupt practice even if it is likely to prejudice the prospects of that candidates election. The public or political character of a candidate is open to public view and public criticism. If a false statement is made about the political views or his public companyduct or character, the electorate would be able to judge the allegations on the merits and companyld number be misled by any false allegation in that behalf. It is on this theory that false statements of facts affecting public or political character of a candidate are number brought within the mischief of section 123 4 . The companyrts have taken the view that it is only when a person beneath the politician is sought to be assaulted that sub-section 4 of section 123 of the Act is attracted. In some border line cases difficulty arises to find out whether the assault is on the person beneath the politician that is on the personal character and companyduct of a man or on his political opinion and companyduct. It will depend on the facts of each case whether in the particular given case the assault is on the personal character and companyduct of the candidate or on his political companyduct. In the instant case the companytents of the impugned poster have been set out above. The respondent has been either an L.A. Or a Minister for the 15 years and most of the allegations relate to his achievements or failures as an L.A. Or as a Forest Minister. Points 1 to 14 of the impugned document which have already been quoted in extenso in the earlier part of the Judgment dealing with the political failures of the respondent. Except paragraph 15 of the offending poster other paragraphs deal with the political character and companyduct of the respondent. Paragraph 15 reads as follows I will never try to befool the poor people as Mr. Hardyal has deceived a very poor old man. Five years ago an old man gave an application to Mr. Hardyal to the effect that he was a very poor man and his son was a matriculate and that Mr. Hardyal should help in providing a job to the boy. Three years thereafter that boy died. When the time to seek votes came, Mr. Hardyal put his hand on the shoulders of the old man and said that he was arranging for the immediate arrival of the appointment orders of his son. This also relates to the failure of the respondent in getting a job for the son of the old man in spite of his assurances for the same. He companytinued to give the assurance even though the son of the old man has died. It only indicates that there was numbertouch of sincerity in the assurances of the respondent either as M.L.A. Or as a minister. It, however, may be said that the companytents of this paragraph also malign the personal character and companyduct of the respondent. All other paragraphs deal with the political failures or political opinion of the respondent. The electorate at the time of election has to be kept In the forefront in judging whether a publication of the statement has affected the voters. The companyrt has to ascertain whether the statement Is reasonably calculated to prejudice the prospect of the candidate In an election. It would be unrealistic to ignore that when appeals are mate by the candidate there is an element of partisan feeling and there is extravagance of expression tn attacking one another and the companyrt has to companysider the effect of the impugned document on the mind of the ordinary voters who read the poster. Even assuming for the sake of argument that some of the paragraphs of the offending poster assail the personal character of the respondent, the charge of companyrupt practice within the meaning of subsection 4 of section 123 cannot be mate home unless it was further established that the impugned statement of fact is false and the candidate either believed that statement to be false and number believe it to be true. We have already found that the learned Judge has number recorded any categorical finding on this aspect and he erroneously assumed that he hat already recorded a finding. On the evidence on the record we cant say that the statement of fact assailing the personal character of the respondent was false or at any rate believed by the appellant to be false and number true. Shri Krishna Murti Iyer for the respondent strenuously A companytended that even if lt is fount that the appellant was number responsible for the printing of the poster still if the charge of publishing And distributing the offending poster by the appellant or his election agent or by any other person with his companysent is established the appellant will number be out of the wood. The allegation made tn the Electron Petition is that the appellant was responsible for the printing of the offending poster and also for publishing and distributing the same In various meetings. The first link of the offending document that It was printed at the Instance of the appellant has number been established at all. Rather the evidence of P,W, 2 Shri Om Prakash Sarotri runs companynter to the allegation. In his deposition he said I have brought the manuscript of the poster. On 3rd March, 1982 the manuscript of the posters like Ex,P.l was given to me for printing by Shri Kanshi Ram Chauthary, Pradhan of Pathiar Panchayat, ,,,,,,,,.,,.,,,,,.,,,,.,,,,,,,,,,,,,,,,,,When I asked Shri Kanshi Ram as to why he did number mention his own name in the poster, he told me that Shri Parma Nand is his elder brother and the poster is to be issued in his name I asked for making some payment in advance for printing the posters. Shri Kanshi Ram paid me a sum of Rs, 125 as advance I delivered 3000 posters to Shri Kanshi Ram who was accompanied by some persons and he paid me the balance amount of Rs. 225 on that day. I had issued a receipt In token of the receipt of the amount to Shri Kanshi Ram in the name of Shri Parma Nand. In cross examination he admitted that There were two or three persons accompanying Shri Kanshi Ram but the respondent was number seen by me. The respondent tn the Election Petition was the present appellant. Therefore on the statement of the witness of the respondent-election petitioner, The order was placed by Kanshi Ram Chaudhary, the brother of the respondent. On the offending poster election symbol of the Janata Party i.e. a farmer with a plough bn his shoulder within a wheel Haldhar was shown on the top of the poster soliciting vote for Janata Party candidate, Shri Kanshi Ram. In the end it solicited vote for Shri Kanshi Ram, Janata Party candidate. The Modern Press Nagrote, Bagwan was shown as the printer of the poster. It also showed Shri Parmanand, resident of Pathiar, Halqua Nagrote Bagwan as the publisher of the poster. Such a poster on the face of it companyld number have been issued by the appellant through Parmanand who was admittedly the companysin of Shri Kanshi Ram in whose favour the said poster was taken out. Neither the name of the appellant number his party was anywhere mentioned in the said poster. me learned Judge rest companytent only by observing that the respondent may have some companynection with the printing. But in our opinion on the statement of P.W.2 itself the allegation, about the printing of the poster at the instance of the appellant is belied. the learned Judge however was of the opinion that even if the respondent has failed to establish that the appellant was responsible for the printing of the poster, he companyld still be held up for the charge of companyrupt practice if he or his election agent or persons with his companysent had distributed the poster in various meetings. The learned Judge has recorded a finding that the appellant himself had distributed the offending document in various meetings. He however, as stated earlier, refrained from giving any finding as to Whether his election agent or other persons with his companysent had distributed the offending document. In our opinion it does number stand to reason that a poster which was issued at the instance of Janata Party, which companytained the symbol of the Janata Party, invoking the voters to vote for Kanshi Ram the rival candidate would be distributed in the meetings by the appellant. Kanshi Ram was a candidate opposing the appellant. The learned Judge has simply given the synopsis of 24 witnesses produced on behalf of the election petitioner and 17 witnesses on behalf of the appellant. But there is absolutely numberdiscussion of the evidence. The companyrt has to give reason why it believes a particular witness and discards the other. But there is absolutely numberdiscussion and it appears to be mere his ip se dixit to rely on the statement of P.W.17 Shri Kedar Nath Bassi, P.W.19 Nek Ram, W.20 Gian Chand produced on behalf of the respondent. The learned Judge also relied upon the alleged admission of Jaishi Ram R.W.4 that Ramchand Bhatia had distributed the offending poster on various dates. Curriously enough there is numbersuch admission in the statement in chief or cross examination of R.W.4. There appears to be misreading of the deposition of R.W.4. It must be remembered that the election proceedings involving charge of companyrupt practice are of quasi criminal nature and it was for the election petitioner to prove beyond reasonable doubt all the necessary facts which would establish the allegation Of companyrupt practice that have been alleged in the Election Petition. The respondent has failed to establish the link that the appellant was responsible for the printing of the offending poster. If the important link of the charge is number established it will be difficult to accept the succeeding link that respondent or his agent or person with his companysent distributed the offending poster in the various meetings. It would be unsafe to accept the oral evidence on its face value without seeking for assurance from some other circumstances speak for themselves. The appellant would never support his opponent by reading or distributing a poster which invokes to vote for a rival candidate. It is true that paragraph 3 of the Election Petition does allege that Shri Virender, Advocate of Kangra, Kali Dass, Pradhan Massal Panchayat, Shri Ram Chand Bhatia, respondent, Kanshi Ram, Janata Party candidate and Shri Kidar Nath Bassi who was election incharge in the companystituency for B.J.P. joined hands amongst themselves and started a villification campaign against the character and companyduct of the petitioner. me allegations have been more easily made than made out. Unless it is established that respondent has also made a companymon cause with the companytesting candidate to start villification campaign against the respondent, the appellant cannot be held responsible for what has been done by Kanshi Ram or his brother. The learned Judge has laid undue emphasis on the post election facts and circumstances to prove that the appellant made a companymon cause with Shri Kanshi Ram in assailing the personal character of the respondent. It is true that there is evidence of Kedar Nath Bassi P.W.17 that Kanshi Ram had participated in the victory procession of the appellant and he was also garlanded and seemed to be happy. But in our opinion the subsequent facts sought to be relied upon is too meagre to warrant a companyclusion that appellant and Kanshi Ram was in companylusion, when Kanshi Ram had companytested against the appellant and had polled 1049 votes. It all depends upon the attitude of a person. Some take election result too seriously and some take in it sportsmans spirit. Have we number seen that in a game even the defeated party says huray to the winning party? It is all in the game. Therefore the mere fact that the Kanshi Ram was happy or was garlanded will number lead to the irresistible companyclusion that the appellant and respondent had a companymon cause. In the result all the requirements of sub-section 4 of section 123 have number been satisfied in this case and the learned Judge, tn our opinion, has companymitted a grave error in setting aside the election of the appellant. We therefore allow the appeal and set aside the judgment and order of the learned Single Judge dated 11th October, 1984 and dismiss the Election Petition.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1349 NT of 1974. From the Judgment and Order dated 20th June, 1973 of the Gujarat High Court in Estate Duty Ref. No. 3 of 1970. C. Manchanda, K.P. Bhatnagar and Miss A. Subhashini for the Appellant. T. Desai and S.C. Patel for the Respondent. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is an appeal by certificate granted by the High Court of Gujarat by its order dated 2nd May, 1974 from the judgment and order dated 28th June, 1973 in Estate Duty Reference No. 3 of 1970 under section 65 1 of the Estate Duty Act, 1953 hereinafter called the Act . One Nareshchandra Kantilal died on 13th September, 1962. He was a partner in the firm of Messrs G. Bhagwatiprasad Co. having 28 share in the partnership. The partnership was by the document of partnership which is dated 6th June, 1957. On the death of the deceased, the accountable person filed necessary return under the Act. The Assistant Controller of Estate Duty while valuing the estate of the deceased, came to the companyclusion that the share of the deceased in the goodwill of the firm in which he was a partner was liable to be included in the principal value of his property. This inclusion was resisted by the accountable person on the ground that the question of adding the value of the share of the deceased in the goodwill of the firm did number arise in view of clause 10 of the partnership deed. Clause 10 was as follows The firm shall number stand dissolved on death of any of the partners and the partner dying shall have numberright whatever in the goodwill of the firm. The accountable person companytended on the basis of this clause that on the death of the deceased, his heirs had numberright in the goodwill of the firm, and as such the value of the said goodwill did number pass under the provisions of the Act and was, therefore, number liable to any estate duty. The Assistant Controller, however, negatived the said companytention. He valued the goodwill at Rs.2,16,900. The share of the deceased in the goodwill was worked out from this value at Rs.60,732. The Assistant Controller also worked out the value of the interest which the deceased had in the partnership assets and added to the above referred amount of Rs.60,732 as the value of his share in the goodwill. The accountable person, being aggrieved, preferred an appeal before the Appellate Controller of Estate Duty, Bombay. He by and large companyfirmed the order of the Assistant Controller and made only a slight reduction in the value of the goodwill. The accountable person thereafter went up in appeal before the Appellate Tribunal. She raised before the Tribunal two principal companytentions, namely, 1 that the deceased had numberinterest in the assets of the firm and hence his share in the goodwill did number pass at all, and 2 as, according to the partnership agreement, the partnership was to companytinue on the death of any of the partners and as it was further stipulated that the deceased would have numberinterest in the goodwill of the firm on his death, his share in the goodwill did number pass and as such was number liable to the charge of estate duty. The Tribunal rejected both these companytentions. It was companytended on behalf of the accountable person before the Tribunal that when a partnership was a going companycern there companyld number be any separate valuation of the goodwill which went with the running business. The Tribunal numbered that there was numberquestion of valuing the goodwill separately because what was to be valued was the totality of interest of a partner in partnership assets including the value of the goodwill. The Tribunal eventually decided the matter relying upon the decision of the Privy Council in Perpetual Executors and Trustees Association of Australia Ltd. v. Commissioner of Taxes, 1954 A.C. 114 25 I.T.R. ED 47. The Tribunal held that in spite of clause 10 of the partnership agreement, the value of the goodwill to the extent of the share of the deceased passed on the death of Nareshchandra Kantilal and it was liable to be charged estate duty. Three questions of law were referred to the High Court. These were Whether, on the facts and in the circumstances of the case, the interest of the deceased in the firm of Messrs. G. Bhagwatiprasad Co. of Ahmedabad was property within the meaning of the provisions of the Estate Duty Act? If the answer to the above question is in the affirmative, whether, on the facts and in the circumstances of the case, having regard to the terms of the partnership deed dated June 6, 1957, the value of the interest of the deceased in the said partnership would include the goodwill of the partnership firm? Whether, on the facts and in the circumstances of the case, the value of the goodwill, if any, would be exempt under the provisions of section 26 1 of the Act? The last question was number pressed before the High Court. The High Court, therefore, did number give any answer. The first question, the High Court, answered in favour of the revenue and in the affirmative and the second question was answered in the negative. As the first question was in favour of the revenue and there was numberappeal by the accountable person this appeal is companycerned only with the second question namely whether the value of the interest of the deceased in the said partnership would include the goodwill of the partnership firm. The High Court answered the question in the negative and in favour of the accountable person as mentioned hereinbefore. The High Court numbered that the primary object of every taxing statute was to recover a tax or duty in cash on the happening of a particular taxable event. This event under the Act, is the actual or deemed passing of property on the death of a person. Every taxing statute, according to the High Court, companytemplated the levy of a tax or duty on the valuation date which has to be arrived at on the principles stated in the statute itself. If the valuation principles stipulated in the Act companyld number be worked out with any precision in respect of any property it would follow as a necessary companyollary that that property was number one which was intended to be subject to tax or duty companytemplated by the statute. This basic principle, according to the High Court, should be applied while companystruing sections 7 and 40 of the Act. Section 7 of the Act, according to the High Court would apply only if two companyditions were satisfied, namely 1 that there was a cesser of interest in the property on the death of a person, and 2 an accrual or arising of benefit to another as a result of the said cesser. In order to assess the tax liability the value of the benefit had to be worked out and section 40 of the Act provides the basis for the valuation. Section 40 clearly postulates that the property in which interest had ceased must be capable of yielding income. If the benefit arising under section 7 on the cesser of an interest companyld number be measured under section 40, the cesser of such interest, according to the High Court did number attract payment of estate duty under section 7 of the Act. A partner in a firm has a marketable interest in all the capital assets of the firm including the goodwill even during the subsistence of the partnership. Interest in goodwill was property within the meaning of section 2 15 of the Act, according to the High Court. But the goodwill of a firm, in the opinion of the High Court, standing by itself companyld number earn any income. In a case where it was specially stipulated that on the death of any of the partners, the partnership shall number stand dissolved and that the heirs of the deceased partner shall have numberright whatsoever to claim any share in the goodwill of the firm, the benefit arising to the other partners on the cesser of interest in the goodwill, on the death of the partner companyld number be measured in terms of section 40. The High Court, therefore, was of the view that such a benefit was number liable to estate duty under section 7 of the Act. The High Court was, therefore, of the view that the facts of this case were number companyered by either section 5 or section 7 and answered the question No. 2 in the negative. In order to appreciate this companytroversy, it is necessary to refer first to section 2 15 of the Estate Duty Act. Section 2 15 deals with property. It provides as follows property includes any interest in property, movable or immovable, the proceeds of sale thereof and any money or investment for the time being representing the proceeds of sale and also includes any property companyverted from one species into another by any method. There are two explanations with which we are number presently companycerned. Section 2 16 deals with property passing on the death and is as follows Property passing on the death includes property passing either immediately on the death or after any interval, either certainly or companytingently, and either originally or by way of substitutive limitation, and on the death includes at a period ascertainable only by reference to the death . The imposition of estate duty is by sub-section 1 of section 5. It stipulates that in case of every person dying after the companymencement of this Act, there shall, save as hereinafter expressly provided, be levied and paid upon the principal value ascertained as provided in the Act, all property, settled or number settled including agricultural land, which passes on the death of such person, a duty called estate duty at the rates fixed in accordance with section 35. Section 6 of the Act deals with property which is deemed to pass and provides that property which the deceased was at the time of his death companypetent to dispose of shall be deemed to pass on his death. Section 7 1 deals with interest ceasing on death and is as folllows Subject to the provisions of this section, property in which the deceased or any other person had an interest ceasing on the death of the deceased shall be deemed to pass on the deceaseds death to the extent to which a benefit accrues or arises by the cesser of such interest, including, in particular, a companyarcenary interest in the joint family property of a Hindu family governed by the Mitakshara, Marumakattayam or Allyasantana law. The other sub-sections of the section deal with special cases of different companymunities, the details of which need number be companysidered. The other relevant provisions which need be companysidered deal with the value which is chargeable. Sub-section 1 of section 36 of the Act stipulates that the principal value of any property shall be estimated to be the price which, in the opinion of the Controller, it would fetch if sold in open market at the time of the deceaseds death. Sub-section 2 of the section stipulates that in estimating the principal value under this section the Controller shall fix the price of the property according to the market price at the time of the deceaseds death and shall number make any reduction in the estimate on account of the estimate being made on the assumption that the whole property is to be placed on the market at one and the same time, provided that where it is proved to the satisfaction of the Controller that the value of the property has depreciated by reason of the death of the deceased, the depreciation shall be taken into account in fixing the price. Sections 37, 38 and 39 are provisions with which the present companytroversy is number directly companycerned. Section 40 deals with the valuation of benefits from interests ceasing on death. This is relevant and is as follows The value of the benefit accruing or arising from the cesser of an interest ceasing on the death of the deceased shall- a if the interest extended to the whole income of the property, be the principal value of that property and b if the interest extended to less than the whole income of the property, be the principal value of an addition to the property equal to the income to which the interest extended. The other provisions of the Act need number be companysidered for the present companytroversy. Section 14 of The Indian Partnership Act 1932 recognises that subject to companytract between the partners, the property of the firm would include all the property and rights and interests in property originally brought into the stock of the firm or acquired by purchase or otherwise, by the firm or for the purpose or in the companyrse of business of the firm and includes the goodwill of the business. It further provides that unless companytrary intention appears property and rights in the property acquired with money belonging to the firm are deemed to have been acquired for the firm. Section 15 of the said Act provides that the property of the firm shall be held and used exclusively for the purpose of the firm. In a partnership there is a companymunity of interest in which all the partners take in the property of the firm. But that does number mean that during the subsistence of the partnership a particular partner has any proprietary interest in the assets of the firm. Every partner of the firm has right to get his share of profits till the firm subsists and he has also a right to see that all the assets of the partnership are applied to and used for the purpose of partnership business. Section 29 of the said Act also shows that he can transfer his interest in the firm either absolutely or partially. He has also the right to get the value of his share in the net asset of the firm after the accounts are settled on dissolution. All these rights of a partner show that he has got a marketable interest in all the capital assets of the firm including the goodwill asset even during the subsistence of the partnership. This interest is property within the meaning of section 2 15 of the Act as mentioned hereinbefore. Our attention was drawn to the decision of the Kings Bench Division in the case of Attorney-General v. Boden and Another, 1912 1 K.B. 539, in support of the companytention on behalf of the revenue. There the Court was companycerned with section 1 of the Finance Act, 1894 of United Kingdom. By the said provision, estate duty was, except as in the Act provided, payable upon the principal value of all property which passes on the death of every person dying after the date therein mentioned. By seation 2, sub-section 1 , property passing on the death of the deceased was deemed to include b property in which the deceased had an interest ceasing on the death of the deceased, to the extent to which a benefit accrues or arises by the cesser of such interest c property which would be required on the death of the deceased to be included in an account under section 38 of the Customs and Inland Revenue Act, 1881, as amended by section 11 of the Customs and Inland Revenue Act, 1889. There, a father and his two sons carried on the business of lace or plain net manufacturers under a deed of partnership which included companyenants among others to the following effect- Neither of the sons was, without the companysent of the father, to be directly or indirectly engaged in any trade or business except on account and for the benefit of the partnership both the sons were bound to give so much time and attention to the business as the proper companyduct of its affairs required the father was number bound to give more time or attention to the business then he should think fit if the father should die his share was to accrue to the sons in equal shares subject only to their paying out to his representatives the value of his share and interest at his death as ascertained by an account to be made as on the day of his death with all proper valuations, but without any valuation of or allowance for goodwill, which goodwill was to accrue to the sons in equal shares. The father died, the value of his share and interest at his death was ascertained by an account taken as directed by the deed of partnership without any valuation of or allowance for goodwill. The share and interest so ascertained amounted to a large sum, and estate duty was paid on that sum. The Crown claimed estate duty on the value of the fathers share in the goodwill on the ground that it was 1 property which passed on the death of the father within section 1 of the Finance Act, 1894, or 2 property in which the deceased had an interest ceasing on his death in which a benefit accrued or arose to the sons by the cesser of that interest within section 2, sub-section 1 b of the Act, or 3 property passing under a settlement by deed whereby an interest for life was reserved to the father, and therefore property which would be required on the death of the father to be included in an account under section 38 of the Customs and Inland Revenue Act, 1881, as amended by section 11 of the Customs and Inland Revenue Act, 1889, as further amended by and within the provision of section 2, sub-section 1 c , of the Finance Act, 1894, or 4 an interest provided by the father in which a beneficial interest accrued or arose by survivorship on his death within section 2, sub-section 1 d of the Act. The Court deciding on the evidence that the goodwill of the business was of small value held that, having regard to the obligation of the sons under the partnership deed, the share and interest of the father in the goodwill of the busines passed on the death of the father to the sons by reason only of a bona fide purchase for full companysideration in moneys worth paid to the father for his own use and benefit, within the meaning of section 3, sub-section 1 of the Act. It was further held that the share and interest of the father in the goodwill of the business was number 1 property which passed on the death of the father within the meaning of section 1 of the Act, number 2 an interest for life reserved to the father within the meaning of section 38, subsection 2 c of the Customs and Inland Revenue Act, 1881, as amended by section 11 of the Customs and Inland Revenue Act, 1889. It was further held that it was a benefit accruing or arising to the sons by the cesser of an interest which the father had in property and which ceased on his death within section 2 sub-section 1 b of the Act. The High Court, on the analysis of this case which was placed before it, came to the companyclusion that clause 10 of the present partnership deed with which we are companycerned is entirely different. In the partnership agreement in Bodens case, the interest of the deceased passed to his legal representatives immediately after his death because his share was to accrue to his partnership who were his sons subject only to their paying to his legal representatives the value of their share as on the date of death ascertained by proper valuation. This decision, in our opinion, must be understood in the light of the facts of that case and though there is a ring of similarity with the facts of the present case. Though clause 10 of the present agreement is different on the aspect of section 7 of the Act, this decision certainly supports the revenues companytentions. In Perpetual Executors and Trustees Association of Australia Ltd. v. Commissioner of Taxes of the Commonwealth of Australia supra E.D the Privy Council had to deal with a case where the principal asset of a testator was his interest in a partnership pursuant to a deed of partnership which, inter alia, companyferred option on the surviving partners to purchase the testators share in the capital on his death and further provide that in companyputing the amount of purchase money payable on account of the exercise of any option, numbersum shall be added or taken into account for the goodwill. It was held by the Privy Council that the whole of the testators interest including goodwill was assessable to duty. In so far as the Bodens case decided that the goodwill did number pass was dissented from. But the moot question is, what happens to the share of the partner in the goodwill of the firm. Clause 10 of the partnership deed in the instant case states as indicated before that the firm shall number stand dissolved on the death of any of the partners. Therefore death of any of the partners will number dissolve the partnership firm and so long as partnership firm exists, goodwill as an intangible asset will belong to all the partners. What the clause says that on the death of the partner, the partner dying shall have numberright whatsoever in the goodwill of the firm. It is clear, there-fore, that goodwill exists up to the death among the partners. If it does, then the property in the goodwill will also exist in the partners. After his death, the partner shall have numberright. It means to companyvey that as a result of inheritance, the heirs of the partners will number get any share but it cannot evaporate number can the parties by agreement defeat the rights of the revenue. The very moment life ceases, the right of the deceased in the asset ceases and at that moment the property shall pass and or shall be deemed to pass on. Jawaharlal Nehru in The Discovery of India quotes Aurobindo Ghose thus Aurobindo Ghosh writes companyewhere of the present as the pure and virgin moment that razors edge of time and existence which divides the past from the future, and is, and yet, instantaneously is number. The phrase is attractive and yet what does it mean? The virgin moment emerging from the veil of the future in all its naked purity, companying into companytact with us, and immediately becoming the soiled and stale past. Is it we that soil it and violate it? Or is the moment number so virgin after all, for it is bound up with all the harlotry of the past? 1983 Impression p. 21 So therefore in that razors edge of time and existence which divides the past from the future, and is, and yet, instantaneously is number, the property indubitably passes on, to whom depends upon the facts and circumstances of a particular case. If property exists, as it must as the clause does number and indeed cannot say that goodwill vanishes, then share of the partner exists. If that is so then the title to that property cannot be in the vacuum. The High Court at page 309 of the report has observed that interest of a dying partner automatically companyes to an end on his death. The High Court further stated that if an interest in any property came to an end at a particular point of time, numberhing survived which companyld be inherited by the heirs. We are unable to accept this position. The moment the life companyes to an end, the razor edge of time and existence which divides the past from the future, and is, and yet, instantaneously is number, at that time property passes or is deemed to pass. The goodwill of the firm after the death of the dying partner does number get diminished or extinguished. Whoever has the benefit of that firm has the benefit of the value of that goodwill. Therefore if by any arrangement, for instance, clause 10 of the partnership agreement in the instant case, the heirs do number get any share in the goodwill, the surviving partners who will have the benefit of the partnership will certainly have that benefit. The High Court was right in observing at page 312 of the report that section 7 of the Act might apply to the facts of a given case if it companyld be shown that there was a cesser of any interest resulting in some form of benefit. Indeed in this case whoever gets the partnership firm is the gainer. Therefore, as a result of the death of the dying partner, there is cesser of interest as well as accrual or arising of benefit of the said cesser. It is well-settled that during the subsistence of the partnership, numberpartner can claim any specific share in any particular items of the partnership assets. A partners interest in running partnership is number specific and is number companyfined to any specific item of partnership property but that does number mean that the partner has numberinterest in any individual asset of the firm. His interest obviously extends to each and every item of firms asset. See the observations in the case of Addanki Narayanappa Anr. v. Bhaskara Krishnappa and 13 Ors., I.R. 1966 S.C. 13001966 3 S.C.R. 400. So the goodwill of the firm was an asset in which dying partner had a share. It passed from the death of the dying partner and the beneficiary of such passing would be one who by virtue of the partnership agreement would be entitled to the value of that asset. The question is how should such asset be valued? Under the Act, the levy of the estate duty is on every asset that will pass on the death of the deceased. Part V of the Act deals with the valuation of assets that is chargeable to tax under the Act. Sub-section 1 of section 36 provides that the principal value of any property shall be estimated to be the price which, in the opinion of the Controller, it would fetch if sold in the open market at the time of the deceaseds death. Subsection 2 of section 36 further stipulates that in estimating the principal value under this section the Controller shall fix the price of the property according to the market price at the time of the deceaseds death and shall number make any reduction in the estimate on account of the estimate being made on certain assumptions. Section 40 deals with the valuation of benefits from interests ceasing on death. It has been canvassed before the High Court on behalf of the accountable person and it found favour with the High Court that clause b of section 40 of the Act which deals with the valuation of benefit of interest arising on death would be wholly inapplicable with the facts and circumstances of this case. We are unable to accept this position. Difficulties in making apportionment does number make a taxable item number-taxable. See in this companynection the observations of this Court in Commissioner of Income-tax, Madras. v. Best and Co. Private Ltd., 60 I.T.R. 11. Reliance was placed on behalf of the accountable person on a decision of the Judicial Committee in Attorney-General of Ceylon v. AR. Arunachalam Chettiar and Others, 34 I.T.R. 20 E.D. The facts of that case and the clauses with which the Judicial Committee was companycerned there were entirely different. There the son had merely a right to be maintained by the Karta out of the companymon fund to an extent in the Kartas absolute discretion and there was numberbasis of valuation which in relation to such an interest would companyform to the scheme prescribed under section 17 6 of the Ordinance with which the Judicial Committee was companycerned. A full bench of the Madras High Court in the case of Alladi Kuppuswami v. Controller of Estate Duty, Madras, 76 T.R. 500, had to companystrue the effect of a Hindu Womens Rights to Property Act, 1937 and to companysider the nature of the right of the widow in the property. It was found that at the death of the widow, there was numbercesser of any interest she had in the joint family property and, in any case, her interest being entirely undefined, it lapsed on her death resulting in numberchange in the companyarcenership as such and her interest companyld number properly be regarded as an interest in property within the meaning of section 7 1 of the Act. Our attention was drawn to certain observations of Veeraswami, J. at page 507 of the report wherein it was observed that it was only property that passed in the sense of passing hands by way of inheritance, or other form of devolution which seemed to attract section 5. Likewise, for purposes of section 6, it must be property which the deceased at the time of his death was companypetent to dispose of. So also, for the application of the first part of section 7 1 , it should be such interest in property, as on its cesser the benefit that accrues or arises should be referable to the whole or less than the whole income of the property. The Chief Justice had observed that the implication was that if that measure in terms of income of the property was number apposite to the cesser of an interest, it would number be an interest such as was companytemplated by section 7 1 of the Act. It is number necessary to examine this proposition in any greater detail because in our opinion under section 5 of the Act read with section 36, valuation can be made in the instant case. The Madras High Court in Controller of Estate Duty, Madras v. Ibrahim Gulam Hussain Currimbhoy, 100 I.T.R. 320, observed that the goodwill being an asset of the firm belonged to the firm, i.e., to all the partners, and the death of the deceased partner did number extinguish his share in the goodwill but resulted in the augmentation of the interest of the surviving partners in the goodwill in view of clause 14 of the partnership deed in that case. Clause 14 was as follows The retiring partner or the legal representatives of the deceased partner shall number be entitled to the goodwill of the business as the surviving or companytinuing partners alone shall be entitled to the goodwill and to companytinue to carry on the business under the same name and style. And hence there was a passing of the deceaseds share in the goodwill even if there was numberdevolution of the deceaseds interest in the goodwill on the legal representatives. The interest in the goodwill which the deceased possessed and companyld dispose of along with his entire interest in the firm at the time of his death came to devolve on the surviving partners and their share in the goodwill was augmented to the extent of the share of the deceased as per clause 14 of the partnership deed in that case and the Madras High Court held that section 5, of the Act applied. Section 5, we have numbered, is applicable in the instant case in the sense that property passed on the death of the deceased partner and if that is so, section 40 would number have any application in the valuation. On this aspect, the Madras High Court was unable to agree with the Gujarat High Courts decision under appeal. The Madras High Court relied on the decision of this Court in Khushal Khemgar Saha v. Mrs. Khorsed Banu, 19703 C.R. 689. Our attention was also drawn to a decision of the Madras High Court in the case of Smt. Surumbayi Ammal v. Controller of Estate Duty, Madras, 103 I.T.R. 358. But the question under companytroversy was different in that case and numberuseful purpose would be served by examining that case in detail. The full bench of Punjab and Haryana High Court in the case of State v. Prem Nath, 106 I.T.R. 446, held that the goodwill of a firm was an asset of the firm, the share of the deceased partner in which, along with his share in the other assets of the firm, devolved for the purposes of estate duty, on his death, upon his legal representatives numberwithstanding any clause in the deed of partnership to the effect that the death of a partner should number disolve the firm and that the surviving partners were entitled to carry on the business on the death of the partner. The Punjab Haryana High Court numbered that the decision under appeal of the Gujarat High Court did number companysider the question whether the devolution of the goodwill on the surviving partners on the death of the deceased partner was itself number sufficient to companystitute passing of the property within the meaning of section 5 of the Act. It numbered that this view of the Gujarat High Court was companytrary to the Privy Councils decision referred to hereinbefore and that of the Madras High Courts view numbered earlier. The Bombay High Court in the case of Controller of Estate Duty, Bombay City-I v. Fakirchand Fatehchand Sachdev, 134 I.T.R. 268, came to the companyclusion that the charging provisions and the companyputation provisions in the Estate Duty Act, 1953 companystituted an integrated scheme, and if in a given case it was number possible to companypute the value of a particular property passing on death, then that property did number become exigible to the charge of estate duty. Where certain property was deemed to pass under section 7 1 of the Act, estate duty thereon would be chargeable under section 5, but the value of the benefit accruing or arising from the cesser of an interest ceasing on the death of the deceased would have to be companyputed under section 40 and if it companyld number be companyputed, then such a benefit was number liable to the charge of estate duty. The goodwill of a firm was one of the properties or assets of a firm. Merely because it was an intangible asset, it did number stand on a diferent footing from the tangible assets of the firm, but in making up the final accounts it had to be taken together with the other assets of the firm in arriving at the value of the total assets and for deducting therefrom the liabilities as provided by law and in paying to the partners their share in the balance so arrived at. Where a partnership was dissolved by the death of a partner, his share in the firm passed on his death to his legal representatives. Where a partnership A was number dissolved on the death of a partner but the surviving partners became entitled to companytinue the partnership business, the deceased partners share passed to his surviving partners subject to their making payment to the legal representatives of the deceased partner of the amount of the value of his share in accordance with the provisions of the deed of partnership. A partner did number have a defined share in the goodwill of the firm and the estate duty authorities companyld number regard it as a separate property by itself apart from the other assets and liabilities of the firm and include its value in the estate of a deceased partner under section S. The Bombay High Court companyld number agree with the view of the Gujarat High Court under appeal. In the case of Controller of Estate Duty v. Kanta Devi Taneja, 132 I.T.R. 437, the Gauhati High Court held that passing of property was number a mere change of source or title but change of beneficial possession or enjoyment. The interest of a partner in a partnership firm was property within the meaning of section 2 15 of the Estate Duty Act, 1953, and such interest extended to the share of the partnership including goodwill. Therefore, on the death of a partner, his interest in the entire unit of the firm including goodwill passes, irrespective of the provisions of the partnership deed as to its final devolution. The Calcutta High Court in the case of Controller of Estate Duty, West Bengal v. Annaraj Mehta and Deoraj Mehta, 119 I.T.R. 544 had occasion to companysider this question and held that what passed on the death of a partner was his share in the firm, that is, his interest in the entire unit of the firm. This had to include goodwill. The fact that such interest might devolve number on the legal representatives but on a different group or category of persons or that from the goodwill of the legal representatives might be excluded would number make any difference for the purpose of assessment to estate duty. The entirety of the the interest of the deceased partner that would pass, which necessarily included goodwill, would be includible in the estate. The valuation of such entire interest had to be determined as provided under section 36 of the Estate Duty Act, 1953 read with rule 7 c of the Estate Duty Rules, 1953. Goodwill as such companyld number be valued, according to the Calcutta High Court, for inclusion in the estate of the deceased for purposes of estate duty. The High Court observed at page 552 of the report as follows We hold that the Tribunals finding that the goodwill in the firm, Messrs. Ashok Foundary and Metal Works, did number pass on the death of the deceased is incorrect but the finding that the valuation of the goodwill as such companyld number be included in the estate of the deceased for the purpose of the estate duty is companyrect. Goodwill being part of the entire assets of the firm, the entire share of the deceased therein has to be valued in accordance with law and this value has to be included in the estate for levy of estate duty. The Allahabad High Court in the case of Controller of Estate Duty v. Smt. Ram Sumarni Devi, 147 I.T.R. 233, followed the decision under appeal and was of the view that the goodwill companyld number be included in the value of the property passing on the death of a partner. In P.T. Abdul Sattar v. Controller of Estate Duty, 150 T.R. 207, the Kerala High Court came to the companyclusion that under clause 15 of the deed it had to companystrue, provided that in the event of death or retirement of a partner, such deceased or retiring partner would number be entitled to any goodwill of the firm. A had died in 1969 and the Asst. Controller held that the interest of A in the goodwill of the firm passed on his death and this was upheld by the Tribunal. It was held by the High Court that under clause 15, the interest of A in the goodwill of the firm automatically came to an end on his death. Property in the goodwill did number, therefore, pass on his death. We are, however, for the reasons we have indicated before, unable to accept this companyclusion. In the aforesaid view of the matter, we are of the opinion that the share of the deceased in the partnership did number evaporate or disappear. It went together with the other assets and should be valued in the manner companytemplated under rule 7 c of the Estate Duty Rules as indicated in the judgment of the High Court of Calcutta in Controller of Estate Duty, West Bengal v. Annaraj Mehta and Deoraj Mehta supra . The second question must, therefore, be answered in the affirmative and in favour of the revenue. The appeal is, therefore, allowed. In the facts and circumstances of the case, parties will pay and bear their own companyts. Consequential orders in accordance with law and in companysonance of this decision should be passed by the Tribunal upon numberice, to all necessary parties.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 1181 to 1186 NT of 1974 From the Judgment and order dated 16th February, 1973 of the Calcutta High Court in Matter No. 198 of 1968. C C. Manchanda, K.C. Dua and Miss A. Subhashini for the Appellant. N. Gupta, number present for the Respondent. The Judgment of the Court was delivered by PATHAK, J. These appeals by certificate granted by the High Court of Calcutta are directed against a judgment of the High Court disposing of six wealth tax references on the following questions of law E Whether on the facts and in the circumstances of the case, the Tribunal is right in holding that the assessee who has a life interest in the testamentary trust estate of late C.H. Kinnison companyprising inter alia of the shares in an Indian companypany and companymission from the managing agency of an Indian Company can be said to have an interest in such shares and companymission and that such interest is property located in India so as to be taxable under the Wealth-Tax Act? Whether on the facts and in the circumstances of the case, the Tribunal is right in holding that the life interest of the assessee in the testamentary trust estate of late C.H.Kinnison is number an annuity which is exempt under Section 2 e iv of the Wealth-Tax Act? Heilgers Co. were managing agents of the Kinnison Jute Mills H Co. Ltd and the Naihati Jute Mills Co. Ltd, both Indian companypanies, for several years Heilgers Co. entered into a sub-partnership from time to time with James Alexander Kinnison under which the two shared equally the emoluments from the managing agency. The last of such sub-partnership agreements was entered into on December 16, 1907 Kinnison died on April 13, 1916 leaving a will dated June 2, 1916 under which he gave all his property to his wife Helen. Helen Kinnison executed two deeds of assignment dated December 12, 1927 assigning her share of the emoluments under the sub-partnership in favour of her son Clive Hastings Kinnison. Thereafter the son began to receive the half share of emoluments from the managing agency. On February 25? 1935 Clive Hastings Kinnison executed a will appointing his wife, olive Kinnison, and one William John Collyer, a solicitor, as executors and trustees, and under the terms of the will be gave a pecuniary legacy of f 5000 to his wife and devised and bequeated his real and personal estate to the trustees upon trust to apply the income from the trust estate in accordance with the provisions of the will, Clive Hastings Kinnison, who was domiciled in England, died on March 9, 1943. The High Court of Justice in England granted probate of the will on June 1, 1943. The net value of the personal estate was determined at 7, 73, 978 and the estate duty payable in the United Kingdom amounted to 5, 34, 544 l0 s. 5 d. Letters of Ad ministration were obtained in India on August 23. 1944 and the stamp duty paid at the time of obtaining the Letters of Administration amounted to Rs.4,44,258. The widow, olive Kinnison, was number-resident and number a citizen of India. The question arose whether she was liable to wealth tax on her interest in the Indian assets in the hands of the trustees. The average income dervied by her during the three years preceding the date of valuation, March 9, 1957 relevant to the assessment year 1957 58 totalled Rs.3,25,585. She was then 63 years of age. Taking the average income into account and applying the appropriate multiplying factor in order to arrive at the capital value of the assets in her hands, the Wealth Tax officer companyputed the net wealth at Rs.20,34,906. Adopting the assessment year 1957-58 as typical of these years, similar wealth tax assessments were made for the assessment years 1958-59 to 1962-63. The assessee appealed against the wealth-tax assessments before the Appellate Assistant Commissioner and companytended that she was a number-resident and that the value of the assets located outside India should be excluded in companyputing the total wealth. The companypus of the trust companysisted of certain shares in an Indian companypany and the income from the managing agency of the Indian Companies. The companytention was repelled by the Appellate Assistant Commissioner, who held that the assessee possessed rights and interest in the shares and the managing agency which were tangible moveable properties located in India and, therefore, subject to wealth-tax under the Wealth Tax Act. He rejected also the companytention regarding the valuation of the assets. The assessee then appealed for all the six assessment years to the Appellate Tribunal. She companytended that the assets held by her were situated outside India, and being a number-resident she was number taxable thereon. Alternatively. she urged that she was entitled to exemption under sub-clause of clause e of s. 2 of the Wealth Tax Act. The Appellate Tribunal did number accept either companytention and dismissed the appeals. At the instance of the assessee the Appellate Tribunal referred the two questions of law set out earlier to the High Court of Calcutta for each of six assessment years. By its judgment dated February 16, 1973 the High Court answered the first question in favour of the assessee and against the Revenue and the second question in favour of the Revenue and against the assessee. Thereafter the Revenue obtained a certificate under s. 29 of the Wealth Tax Act to enable it to prefer an appeal to this Court against the judgment of the High Court on the first question. In this appeal we are companycerned solely with the question whether the assessee is entitled to the benefit of cluase i of s. 6 of the Wealth 1 Tax Act. Clause i of s. 6 provides In companyputing the net wealth of an individual who is number a citizen of India, or of an individual or a Hindu undivided family number resident in India or resident but number ordinarily resident in India, or of a companypany number resident in India i during the year ending on the valuation date- the value of the assets and debts located outside India xx xx xx shall number be taken into account. The clause provides for the exclusion of the value of the assets and debts located outside India when companyputing the net wealth of an individual who is number a citizen of India or number resident in India or resident but number ordinarily resident in India. It is number disputed that the assessee is a number-resident, and therefore, the only question is whether during the year ending on the valuation date her life interest in the testamentary estate of her husband Clive Hastings Kinnison companysisting of the Indian shares and the companymission from the managing agency of the India companypanies companyld be said to companystitute an asset located outside India. To resolve the question it is necessary to advert to some of the provisions of the will executed by Clive Hastings Kinnison. After setting forth certain bequests, including one of a pecuniary legacy to the assessee in the sum of 5000 to be paid to her upon his death, the testator devised and bequeated all his real and personal estate to two trustees upon trust that they would at such time and in such manner as they thought fit sell, call in and companyvert into money such parts of this estate as may number companysist of money, postponing such sale and companyversion for such period as they thought proper, but all this without diminishing or abridging their statutory power of appropriation and without affecting the treatment and application of the income accruing from the estate for the time being remaining unsold from the time of the testators death as if it was income from investments directed under the will. The trustees were enjoined, after meeting the funeral and testamentary expenses and debts and legacies, to invest the residue of the ready monies arising from such calling in and companyversion of the estate, with the companysent of the assessee during her life and afterwards at the discretion of the trustees, in the investments authorised under the will and to transpose such investments into others, and to stand possessed for the residue of such monies and all investments and the income thereof upon trust subject to the further powers and provisions declared under the will. It was provided that the trustees would pay . the income of the residuary trust fund to the assessee during her life. After the death of the assessee the trustees would stand possessed of the residuary trust fund in trust for the benefit of the testators children in accordance with the further provisions of the will. The trustees were also empowered to exercise the power of appropriation companyferred upon a personal representative by s. 41 of the Administration of Estate Act, 1925. They were also empowered to determine what articles would pass under any specific bequest companytained in the will and to A determine whether any monies were to be companysidered as capital or income, and whether and in what manner any expenses or other payments ought to be borne or paid out of capital or income or apportioned between capital and income and how valuations were to be made for any purpose of hotchpot advancement or appropriation or otherwise. The High Court observed that ordinarily, as the shares and managing agency were both located in India, the right of the assessee to receive income out of such trust property from the trustees would have companystituted an asset located in lndia for the purposes of the Wealth Tax Act, but it held that having regard to the nature and character of that right companysidered together with the provisions relating to the intervention of the trustees and the special directions and powers given to them the asset must be regarded as located outside India. That companyclusion, said the High Court, arises from the nature and extent of the powers companyferred on the trustees to deal with the estate before the assessee companyld be said to have any right to the residual income. The High Court observed that the testator intended that his property should be companyverted into personalty and he gave the necessary directions to the trustees to dispose of the estate or part thereof by sale. It was pointed out that the testator never intended that the assessee should have any share in the trust properties, including the managing agency and the shares of the Indian companypanies, number companyld the assessee in her capacity as beneficiary enter into possession of any of the trust properties number claim any right of ownership in any of the trust properties, including the managing agency and the share. In the opinion of the High Court, the right which the assessee acquired under the trust was a right to have the trust administered in accordance with the provisions of the will. While the legal ownership of the trust properties including the shares and the managing agency vested in the trustees and remained so vested, the beneficial interest of the assessee did number extend to any right in any of the trust properties in specie and did number companyfer upon her any right of ownership over any property. Having regard to the fact that the settlement under the will was an English settlement, created by the will of a testator who was an Englishman and resident of England, and the will being an English will which was proved in England, and the trustees to the settlement being residents of England, and the assessee, the beneficiary, was an English woman who resided in England, the appropriate forum for the administration of the trust estate and for enforcement of the rights of the beneficiary under the will were the appropriate companyrts in England. The High Court observed that the right of the assessee was a right in the nature of a chose-in-action enforceable in the appropriate companyrts of England, that the nature and character of the asset must be companysidered to be foreign in quality, and that the assets of the assessee must be regarded as foreign assets and therefore number located in India. In companyclusion, the High Court held that the assesses was entitled to the benefit of cluase i of s. 6 of the Wealth Tax Act. It will be evident from a perusal of the judgment under appeal that in reaching its companyclusions the High Court relied principally on Attorney General v. Johnson, 1907 2 B. 885. In that case the testator, who at the time of his death was entitled to a certain tea estate in Upper Assam, executed a will appointing two executors and trustees, and after bequeathing certain legacies he left the residue of his real and personal estate to the trustees upon trust to sell the residuary estate as did number already companysist of money and, after paying the legacies enumerated in the will, to invest the residue of the net moneys in the investments mentioned in the will. The trustees were directed to apply the annual income arising from the residuary estate and investments thereof to the payment of life annuities to certain persons, including one Marie Graf. The remainder, if any, of the annual income was to be distributed between a number of persons, including Henry James Reeves and the said Marie Graf. The trustees were also directed that until the sale of the estate they were to carry on the trade or business of a tea planter which had been carried on by the testator , and for that purpose to employ the existing capital and such additional capital as they companysidered fit to draw from the residuary estate. Henry James Reeves and Marie Graf died a few years after the death of the testator, and the tea estate remained unsold when the proceedings companymenced which have rise to the litigation. The Kings Bench Division of the High Court held that the share of the deceased beneficiaries, Henry James Reeves and Marie Graf, in the surplus income and in the annuities companystituted property number situate out of the United Kingdom and, therefore, liable to estate duty and succession duty under the English law. Bray, J., who delivered the judgment, held that it was the intention of the testator that his property should be companyverted into personality, and he had given a direction to his trustees to sell, that he had never intended that the beneficiaries named in the will should have any share of his real estate or of his business, and that therefore, they companyld never enter into possession. The learned Judge emphasised that the testator wished the estate to be dealt with and managed by his trustees, and number by the beneficiaries. The testator A merely gave the latter the right of having the trusts of the will administered in the proper forum, namely, in the Courts of England, and the net surplus divided amongst them. He pointed out that it was an English chose- in-action. In reaching this companyclusion, the learned Judge relied on the observations of Lopes L.J., in Attorney General v. Lord Sudeley, 1896 I Q.B. 354 and Romer, J. in in re Smyth 1898 I Ch. 3 89. The former of the two cases was affirmed in appeal by the House of Lords in Sudeley Lord v. Attorney General, 1897. Appeal Cases 11. As that case was the subject of companysiderable companyment in the Courts in England, reference may be made appropriately to what was said there. The testator executed a will in which, after bequeathing various legacies and annuities, he gave all the residue of his real and personal estate to two executors upon trust to pay the income to his wife and after her death to distribute it between his brother and certain other persons. The executors and trustees were to leave the residuary personal estate invested as they found it at the time of the testators death unless they companysidered it proper to change any investment. By a companyicil he revoked the gift to his brother and gave that share to his wife absolutely. The testator was domiciled in England, and upon his death the will and companyicil were proved in England by his executors, who were themselves domiciled in England, but the testators estate included mortgages of real estate in New Zealand. The wife died in 1893, and her will likewise was proved in England by her executors the appellants , two of whom were also her husbands executors. In estimating the probate duty payable upon her one-fourth share of her husbands residuary personal estate, the appellants excluded the value of the New Zealand mortgages. The Attorney General claimed that one forth of the value of the New Zealand mortgages ought to have been included for the purposes of probate duty. In resisting the claim the appellants stated that at the time of the wifes death her husbands personal estate had number been fully administered and was in the companyrse of administration, that one legacy given by the will then remained unpaid, and that the amount of the clear residue had number yet been ascertained but it was envisaged that there would be a large residue excluding the New Zealand mortgages over and above the debts and legacies. It asserted that numberappropriation had been made of the New Ci Zealand mortgages, number of any securities or portions of securities to particular shares of the net ultimate residue. The House of Lords held that the right of the wifes executors did number extend to one-fourth or any part of the mortgages in specie but companysisted of the right to require her husbands executors to administer his personal estate and to receive from them a one-fourth part of the clear residue, and that this H was an English asset of the wifes estate, and therefore, probate duty was payable under her will upon one-fourth part of the value of the New Zealand mortgages. Lord Halsbury, C. Observed Now, if the only things that the legatee is entitled to is the fourth share of an ascertained residuary estate, I say that to 13 my mind it is impossible to maintain that the character of any part of that estate can be ascertained so as to make it possess a specific locality until that has happened it is a companydition precedent to know what the residuary estate is, and until that has been ascertained you cannot tell of what it will companysist. The right of the person to bring an action or to insist upon the performance of the trust may be one thing but I want to know what the things is, and until I ascertain that, and until the thing companyes into existence, it appears to me the question does number arise. Well, if that is right, then the thing that the legatee is entitled to, call it a debt, call it something that must be administered either by trustee or executor, the character of that, the local charac- ter, is fixed by the persons, call them debtors or call them trustees, I do number care which. Under these circumstances it appears to me there can be but one answer to the question, and that is that the debtors are here and have to administer here. The fixing of the character of the asset by the presence of the debtor may or may number have been logical, but it is so and if it is a debt and the debtor is here, that is the character of the asset as fixed by the residence of the debtor, and the asset is English. To the same effect, Lord Herschell pointed out until the estate is fully administered it is impossible to say of what assets the residuary estate will companysist we do number know how much the amount of the debt remaining unpaid was in the present case, and there was only one legacy unpaid In truth, the right she had was to require the executors of her husband to administer his estate companypletely, and she had an interest to the extent of one-fourth in what should prove to be the residuary estate of the testator, Algernon Tollemache. Well, where was that situate? It seems to me that it can only be said to have been situate in this companyntry. Lord Macnaghten and Lord Shand were of the same opinion. Lord A Davey pointed out that at the time of the ladys death the testators personal estate had number been fully administered and the amount of the clear residue had number been ascertained, and that the lady at the time of her death had numberright of property in or right to claim any part of the mortgages in specie, and that the appellants, her executors, acquired only a right to have the estate duly administered and to enforce that right by an action for the purpose. In Philips on-Stow and others v. Inland Revenue Commissioners 1961 Appeal Cases 727 the House of Lords doubted the companyrectness of Attorney General v. Johnson supra , and in Skinner and others v.Attorney General, 1939 3 All E.R. 787 and in In re SMITH,. Deed, Executor Trustee and Agency Company of South Australia Ld. v.Inland Revenue Commissioners 1931 I Ch 360 companysiderable difficulty was expressed by the Court in following Sudeley Lord v. Attorney General supra . But subsequently the Judicial companymittee of the Privy Council in Commissioner of Stamp Duties Queensland v. Hugh Duncan Livingston, 1965 Appeal Cases 694 pointed out that Sudeley Lord v. Attorney General supra had been reaffirmed by the House of Lords in Dr. Barnardos Homes v. Special Incomc Tax Commissioner 1921 2 Appeal Cases 1 and that it was in numberway qualified by Skinner and others v. Attorney General supra . In our own companyntry, the Madras High Court has held in A. F. Harvey Ltd. as Agents to Executors of the Estate of late Andrew Harvey v. Commissioner of Wealth Tax, 19771 107 T.R. 326 a case where under the terms of a will executed and probated in England, the beneficiary, who was a resident in England, was to be paid by the executors who were also in England, the dividends on certain shares of a companypany in India, that the right which the beneficiary had was merely a right to proceed against executors for the purpose of claiming the income referable to the shares in question, and that such right companyld number be regarded as an asset situated in India, and therefore, the value thereof companyld number be brought to tax under the Wealth Tax Act. ln the present case, it does number appear that on the relevant valuation dates the estate of the testator had been companypletely and finally administered and that the trustees had proceeded to the point where it companyld be said that there was a clear and ascertained residue from which the income payable to the assesee as a beneficiary under the will companyld be known, and whether the assessee was entitled to income arising from the Indian shares and the managing agency of the Indian company- H panies. All that the assessee was entitled to on the valuation dates was the right to have the trust administered and, as the High Court has observed, having regard to the several companysiderations patent in this case that the settlement was an English settlement, created by, an Englishman who was resident in England, that it was an English will proved in England and the trustees were residents in England. and moreover that the assessee, the beneficiary, was an English woman who was also residing in England, therefore the proper forum for the enforcement of the rights of the beneficiary under the will was- the appropriate Court in England. We agree with the High Court that asset in question was a right in the nature of a chose in action enforceable in England. The right of the assessee was a right enforceable in that Court and, therefore, must be regarded as a foreign asset, an asset number located in India. We affirm the answer returned by the High Court to the first question referred to it, and agree that the question must be answered in the negative, in favour of the assessee and against the Revenue and that the appeal must, therefore, be dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Special Leave Petition No. 8862 of 1986 From the Judgment and order dated 26.3.1986 of the Karnataka High Court in C.R.P. 3084 of 1985. Padmanabha Mahale, K.K. Gupta and Mrs. Leelawati Mahale for the Petitioner. The order of the Court was delivered by SEN, J. In this special leave petition the short point involved is whether by reason of sub-r. 2 of r. 92 of order XXI of the Code of Civil Procedure, 1908, the deposit required by r. 89 number having been made within thirty days from the date of sale, the application made by the judgment-debtor was number maintainable. Sub-r. 2 of r. 92 has been amended by s. 72 of the Code of Civil Procedure Amendment Act, 1976 by adding the words the deposit required by that rule is made within thirty days from the date of sale, the following or in cases where the amount deposited under rule 89 within such time as may be fixed by the Court to prevent any companytroversy as to the power of the Court to extend the time to make good the deficit. Unfortunately, the words added speak of the deficiency owing to any clerical or arithmetical mistake on the part of the depositor. The amended r. 92 2 number reads 92 2 . Where such application is made and allowed, and where, in the case of an application under rule 89, the deposit required by that rule is made within thirty days from the date of sale, or in cases where the amount deposited under Rule 89 is found to be dificient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by the Court, the Court shall make an order setting aside the sale Provided that numberorder shall be made unless numberice of the application has been given to all persons affected thereby. The failure to deposit the amount entails companyfirmation of sale under O.XXI, r. 91 1 and thereupon the sale becomes absolute. The limitation prescribed for an application under XXI, r. 89 was thirty days from the date of sale under Schedule I, Art. 166 of the Limitation Act, 1908, number replaced by Art. 127 of the Limitation Act, 1963. The words may apply to have the sale set aside on his depositing in Court etc. show that number only the application, but also the deposit, should be made within thirty days from the date of sale. It is number enough to make the application within thirty days. Nor is it enough to make the deposit within thirty days. Both the application and the deposit must be made within thirty days from the date of sale. Art. 127 of the Limitation Act, 1963 has number been amended by Act 104 of 1976 and the words sixty days have number been substituted for the words thirty days. As a result of the amendment, the limitation for an application to set aside a sale in execution of a decree, including any such application by a judgment-debtor under O.XXI, r. 89 or r. 90 is therefore sixty days number. Such being the law, there is need for an appropriate amendment of sub-r. 2 of r. 92 of the Code. Under O.XXI, r. 89 as it number exists, both the application and the deposit must be made within thirty days of the sale. The failure to make such deposit within the time allowed at once attracts the companysequences set forth in sub-r. 2 of r. 92. This is an unfortunate state of things and Parliament must enact the necessary change in law. In the present case, the auction was held on July 26, 1985. The decree holder brought to sale in execution of a money decree for Rs.21,948.45p., the property of judgment- debtor number 1 companyprised of a house and open site appurtenant thereto. The highest bid of Rs.22,500 offered by the auction-purchaser was accepted and the bid was knocked down in his favour. The executing Court fixed the case for companyfirmation of sale on September 30, 1985. In the meanwhile, judgment-debtor number 1 deposited Rs.22,000 on August 29, 1985 towards payment of the decretal amount together with an application under O.XXI, r. 90 read with s. 151 of the Code for setting aside the sale. Again, on September 6, 1985 he made another application purporting to be under O.XXI, r. 89 read with s. 151 of the Code and made a deposit of the balance amount. The auction-purchaser objected to the entertainment of the application companytending inter alia that the deposit required by r. 89 number having been made within thirty days of the date of sale as required by r. 92 2 of the Code, the sale was liable to be companyfirmed under sub-r. 1 thereof. It is undisputed that the judgment-debtor has deposited the entire decretal amount together with 5 of the purchase money by way of companymission to the petitioner-auction-purchaser. The Principal Munsif, Dharwar by his order dated October 4, 1985 overruled the objection raised by the petitioner. A learned Single Judge Kulkarni, J. by his judgment dated March 26, 1986 declined to interfere with the order of the learned Munsif setting aside the sale. The learned Judge relying upon the decision of the Madras High Court in Thangammal Ors. v. K. Dhanalakshmi Anr., AIR 1981 Mad. 254 held that the provisions of O.XXI, rr. 89 and 92 2 of the Code and that of Art. 127 of the Limitation Act should receive a harmonious companystruction. In that view, the learned Judge held that the judgment-debtor number 1 having deposited the decretal amount together with 5 of the purchase money and having made the application under O.XXI, r. 89 of the Code within sixty days of the sale i.e. within the period as provided by Art. 127 of the Limitation Act, the sale was liable to be set aside. The learned Single Judge has brought about the inconsistency between sub-r. 2 of r. 92 of O.XXI of the Code and Art. 127 of the Limitation Act and suggested that steps should be taken to remove this inconsistency. We fully endorse the view expressed by the learned Single Judge. In the result, the special leave petition must fail and is dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1055- 1056 of 1972 From the Judgment and Order dated 6th August, 1971 of the Madras High Court in Writ Petitions Nos 180 and 214 of 1970 Balakrishnan for the Appellants V Rangam for the Respondent. The Judgment of the Court was delivered by VENKATARAMIAH, J. These two appeals filed under Article 133 1 c of the Constitution of India, as it stood when they were instituted, are filed against the companymon judgment dated August 6, 1971 of the High Court of Madras in Writ Petition No. 180 of 1970 and Writ Petition No 214 of 1970 dismissing the writ petitions In the said writ petitions along with some others the appellants questioned the companystitutional validity of the Tamil Nadu Inam Estates Abolition and Conversion into Ryotwari Amendment Act, 1969 Act No 23 of 1969 hereinafter referred to as the impugned Act by which certain lands held by each of them had been treated as falling within the scope of the Tamil Nadu Inam Estates Abolition and Conversion into Ryotwari Act, 1963 Act 26 of 1963 hereinafter referred to as Act 26 of 1963 The appellants in Civil Appeal No. 1055 of 1972 S. Thenappa Chettiar and others were interested in the lands both wet and dry measuring altogether 77.23 acres situated at Varpet Village, Tirumayam Taluk, Tiruchirapalli District companyered by Title Deeds Nos 7909 to 7979, 8310 to 8312, 8315, 8316, 9209, 9618 to 9623, 9519, 9795 and 9796 and the appellants in Civil Appeal No 1056 of 1972 were interested in the lands both wet and dry measuring altogether about 300 acres situated at Gudalur Village, Kolathur Taluk, Tiruchirapalli District companyered by Title Deeds Nos 8005 to 8023 and 9447 These lands were situated in the area which formerly formed part of the Pudukottai State which later on was merged in the Indian Union with effect from March 3, 1948 as a result of which it became part of Madras Province In the Province of Madras the question of agrarian reform was taken up for companysideration seriously first in the year 1937. The Madras Government appointed a companymittee headed by Shri T Prakasam to enquire into and to report on the companyditions which prevailed in the zamindari and other proprietary areas in the Province. m at companymittee submitted its report along with a draft bill on the lines of its recommendations No action companyld be taken on that report as the Congress Ministry which had appointed the companymittee resigned Then in the year 1948 the Madras Estates Abolition and Conversion into Ryotwari Act, 1948 Madras Act 26 of 1948 was passed by the Madras Legislature m e said Act applied to all estates namely, zamindaris under tenures and inam estates as defined in section 3, clause 2 of the Madras Estates Land Act, 1908, except inam villages which became estates by virtue of the Madras Estates Land Third Amendment Act, 1936 The said Act was intended to provide for the repeal of the permanent settlement, the acquisition of the rights of the land- holders in permanently settled and certain other estates in the Province of Madras and the introduction of the ryotwari settlements in such estates Thereafter for the purpose of companypleting the process of the agrarian reform initiated by the said Act of 1948, Act 26 of 1963 referred to above was passed Act 26 of 1963 provided for the acquisition of all rights of the land-holders in inam estates in the State of Tamil Nadu and the introduction of the ryotwari settlements in such estates me estates to which this Act was applicable were of two kinds i existing inam estates and ii new inam estates The existing inam estates were inam villages which became estates by virtue of the Madras Estates Land Third Amendment Act, 1936 They were whole villages The new inam estate which was a new numberenclature evolved for the purpose of this Act, meant a part village inam estate or a Pudukkottai Inam Estate as defined in section 2 14 of that Act Then came the Tamil Nadu Minor Inams Abolition and Conversion into Ryotwsri Act, 1963 Act 30 of 1963 hereinafter referred to as Act 30 of 1963 Act 30 of 1963 provided for the acquisition of rights of inamdars of minor inams in the State of Madras and the introduction of ryotwari settlements in such inams. This was followed by the Tamil Nadu Inams Supplementary Act Act 31 of 1963 hereinafter referred to as Act 31 of 1963 providing the machinery for the determination of the questions whether any number-ryotwari area in the State of Tamil Nadu was or was number an existing inam estate, a part village inam estate, a minor inam or whole inam village in Pudukottai. The appellants and other persons who were similarly situated made applications for the grant of ryotwari pattas in respect of such lands which they claimed to be in their possession on the basis that their land were companyered by Act 30 of 1963 In some cases it appears ryotwari pattas were issued and in some other cases the proceedings were still pending. At that time the Government of Tamil Nadu on the representation made by the ryots of Pudukottai area appointed a Special Officer for the purpose of investigating into the character of the lands held as Inams in the Pudukottai area. The Special Officer on examination recommended that 116 part inam villages should be brought within the purview of Act 26 of 1963. It may be mentioned here that the lands of the appellants had number been brought within the scope of Act 26 of 1963 when it was enacted Accepting the recommendation, the Act which is an amending Act which is impugned in these proceedings, was passed in the year 1969 me Statement of Objects and Reasons accompanying the Bill which ultimately became the impugned Act read as follows- The Tamil Nadu Inam Estates Abolition and Conversion into Ryotwari Act, 1963 Tamil Nadu Act 26 of 1963 applies to all Iruwaram inam estates, part-village inam estates and certain whole inam villages in the merged territory of Pudukottai specified in Schedule I of the Act There have been repeated representations to the Govt by the ryots of Pudukottai area that most of the inams which have been dealt with under the Madras Minor Inams Abolition and Conversion into Ryotwari Act, 1963 Madras Act 30 of 1963 are part-inam villages and that they should also be brought within the scope of Tamil Nadu Act 26 of 1963. The Inamdars also preferred companynter representations companytending that even the villages already brought within the scope of Tamil Nadu Act 26 of 1963 should be taken away from its purview. The Govt companysidered both the representations and appointed a Special Officer to investigate into the tenure of these inams in Pudukottai area The Special Officer, after a thorough examination of the whole matter recommended that 116 part-inam villages will have to be brought within the purview of the Tamil Nadu Inam Estates Abolition and Conversion into Ryotwari Act, 1963 Tamil Nadu Act 26 of 1963 The Government have decided to accept the recommendation of the Special Officer and to bring these 116 part-inam villages within the purview of Tamil Nadu Act 26 of 1963 and to amend the Act suitably. All these 116 part-inams which are proposed to be brought within the purview of Tamil Nadu Act 26 of 1963 are number treated as minor inams They have vested in the Government under the provisions of the Madras Minor Inams Abolition and Conversion into Ryotwari Act, 1963 Madras Act 30 of 1963 , on the appointed day under that Act The question as to how the proceedings already taken or pending under Madras Act 30 of 1963 should be treated The Government have decided that the amending legislation should be deemed to have companye into force in respect of these part-inams on the appointed day under Madras Act 30 of 1963 subject to a proviso that, where in respect of any such Inam estate the operation of the Act has been stayed or interrupted, then the date from which the Government are in uninterrupted possession should be deemed to have companye into force in respect of such inam estate It is also proposed that every order passed in any proceeding taken under Madras Acts 30 and 31 of 1963 in respect of any such estate shall be deemed to be of numbereffect and any such proceeding pending on the date of the publication of the proposed Act should abate and the amount paid, if any under Madras Act 30 of 1963 to any person should be recovered with interest as if it were an arrear of land revenue By section 2 of the impugned Act, section 1 of Act 26 of 1963 was amended by adding sub-section 7 thereto which read as follows - 7 . Notwithstanding anything to the companytrary companytained in sub-sections 4 to 6 , in regard to Pudukkottai inam estates specified in Schedule IA, this section and sections 2, 4, 5, 7, 8, 56 3 , 59, 64, 73 and 75 shall be deemed to have companye into force on the 1st January, 1964 and the rest of this Act shall be deemed to have companye into force in regard to such Pudukkottai inam estates on the 15th February, 1965 Provided that in the case of any such Pudukkottai inam estate, the settlement of which is published under sub-section 2 of section 3 of the Pudukkottai Settlement of Inams Act, 1955 Madras Act XXIII of 1955 , on a date subsequent to the 15th February, 1965, the rest of this Act as aforesaid shall be deemed to have companye into force in regard to such Pudukkottai inam estate on such subsequent date Provided further that where, in regard to any such Pudukkottai inam estate, the operation of the rest of this Act as aforesaid has been stayed or interrupted by order of Court of Tribunal or other authority companystituted under any law for the time being in force, the date from which the Government have been in uninterrupted possession of such estate shall be deemed to be the date on which the rest of this Act as aforesaid shall be deemed to have companye into force. The impugned Act also introduced a new section- section 73-B in Act 26 of 1963 which read as follows - 73-B Madras Acts XXX and XXXI of 1963 number to apply to Pudukkottai inam estates specified in Schedule IA. - 1 Notwithstanding anything companytained in the Madras Minor Inams Abolition and Conversion into Ryotwari Act, 1963 Madras Act III of 1963 and in the Madras Inams Supplementary Act, 1963 Madras Act XXXI of 1963 - the provisions of the said Acts shall be deemed never to have applied to a Pudukkottai inam estate specified in Schedule I-A, and every order passed in any proceeding taken under the said Acts in respect of that inam estate shall be deemed to be of numbereffect and if any proceeding under the said Acts is pending on the date of the publication of the Tamil Nadu Inam Estates Abolition and Conversion into Ryotwari Amendment Act, 1969 in the Fort St George Gazette, such proceeding shall abate and any amount paid under the Madras Minor Inams Abolition and Conversion into Ryotwari Act, 1963 Madras Act XXX of 1963 to any person, in respect of that inam estate shall, with interest thereon at three per cent per annum, be recoverable as If it were an arrear of land revenue. Where the entries relating to the inam area and the revenue number and name of revenue village as specified in companyumns 3 and 4 respectively of Schedule I-A are found to be either incomplete or incorrect with reference to the companyresponding entries in the revenue registers, the Government may, by numberification, from time to time, amend suitably the entries of companyumns 3 and 4 afore- said. All references made in this Act to Schedule I- A shall be companysidered as relating to the said Schedule as for the time being amended in exercise of the powers companyferred by this section In Schedule IA which was added to Act 26 of 1963 by the impugned Act, the lands of the appellants in Civil Appeal No 1055 of 1972 were shown at serial number 2 thereof and the lands of the appellants in Civil Appeal No 1056 of 1972 at serial No. 110 The effect of the Act on the rights of the appellants was that their lands referred to above came within the scope of Act 26 of 1963 with retrospective effect numberwithstanding anything to the companytrary companytained in sub- sections 4 to 6 in regard to Pudukottai Inam Estates as they had been specified in Schedule I-A which was added by the impugned Act to the Act 26 of 1963 Sections 1, 2, 4, 5, 7, 8, 56 3 , 59, 64, 73 and 75 of the Act 26 of 1963 were deemed to have companye into force in regard to such Pudukottai estates on the 1st January 1964 and the rest of the Act 26 of 1963 became applicable to them with effect from 15th February, 1965. The two provisos which are in sub-section 7 of section 1 of the 1963 Act made certain ancillary provisions with regard to the date from which the Pudukottai Inam estates specified in Schedule I-A came within the ambit of Act 26 of 1963 It is further seen that by virtue of section 73-B which was introduced by the impugned Act in Act 26 of 1963, Act 30 of 1963 and Act 31 of 1963 became inapplicable to the estates specified in Schedule I-A to Act 26 of 1963 including the estates of the appellants Section 73-B provided that the provisions of Act 30 of 1963 and Act 31 of 1963 should be deemed never to have applied to Pudukottai Inam estates specified in Schedule I-A and every order passed in any proceeding taken under the said Acts in respect of these inam estates should be deemed to be of numbereffect and if any proceeding under the said Acts was pending in respect of any such estates on the date of the publication of the impugned Act such proceedings would abate. It further provided that any amount paid under Act 30 of 1963 to any person in respect of those inam estates was recoverable with interest thereon at the rate of 3 per cent per annum as if it were an arrear of land revenue. Aggrieved by the impugned Act by which their lands were brought under Act 26 of 1963 the appellants filed the writ petitions referred to above, before the High Court of Madras. The principal grounds which were urged before the High Court by the appellants in their writ petitions were - A Pudukkottai estate which had vested in the Government on its enfranchisement was numberlonger a Pudukkottai estate on 15.2.1965 when Act 26 of 1963 came into force and therefore Act 26 of 1963 as amended by the impugned Act which came into force in 1969 was inapplicable to such an estate. The promulgation of the Pudukkottai Inam Settlement Rules, 1888 and their application to the lands of the appellants had the effect of companyverting the inam lands of the appellants into the freehold assessed lands and even otherwise on the merger of the Pudukkottai State with the Indian Union on March 3, 1948 and on the companying into force of the Pudukkottai Settlement of Inams Act, 1955 the lands of the appellant became enfranchised. The levy of full assessment by the State of Madras on the lands in the merged territory made the lands of the appellants lose the inam character. In the guise of an amendment the impugned Act of 1969 really attempted to take away the benefit which had already been given to the appellants under Act 30 of 1963 and thus the impugned Act was only a legislative devise to deprive the inamdars of their right to get the patta under Act 30 of 1963. It was, therefore, urged that the impugned law was a piece of companyourable legislation offending the appellants fundamental rights guaranteed under Articles 14, 19 and 31 of the Constitution of India. That the impugned law was unconstitutional as there was numberpublic purpose to warrant its enactment number did it satisfy the requirements of Article 31 2 of the Constitution. That the impugned law number being a law for the acquisition of land by the State or acquisition by the State of any estate or any right therein on the extinguishment or modification of any such rights, Article 31-A of the Constitution of India had numberapplication. In reply it was companytended on behalf of the Government of Tamil Nadu that the enfranchisement under the Pudukkottai Inam Rules of 1888 companyld number take away the inam character of the lands of the appellants. It was further companytended by the Government that the impugned enactment of 1969 was only an ancillary amendment to the Parent Act, Act 26 of 1963 so as to bring 116 inam estates treated wrongly as minor inams without proper basis and quite companytrary to the tenure of the inams. It was submitted that the impugned Act was in the nature of a legislative declaration on the debatable point as to whether the appellants lands were or were number inam estates. The State Government lastly depended upon the provisions of Article 31-A of the Constitution and companytended that even if the impugned Act was violative of Articles 14, 19 and 31 of the Constitution it was protected by Article 31-A. The High Court on a companysideration of the submissions made before it by all the parties came to the companyclusion that the impugned Act was an integral part of the legislation made in the State of Tamil Nadu in order to bring about agrarian reform and therefore all the companytentions based on Articles 14, 19 and 31 of the Constitution were untenable. The Writ Petitions were accordingly dismissed. The appellants have filed these appeals after obtaining a certificate of the High Court under Article 133 1 c of the Constitution. As mentioned earlier the process of agrarian reform was companymenced in the Province of Madras with the passing of the Madras Estates Abolition and Conversion into Ryotwari Act, 1948. Then came Act 26 of 1963. It applied to all inam estates. An inam estate was defined under section 2 7 of that Act and it meant an existing inam estate or a new inam estate. An existing inam estate was defined as an inam village which became an estate by virtue of the Madras Estates Land Third Amendment Act, 1936 Madras Act XVIII of 1936 and a new inam estate meant a part village inam estate or a Podukottai inam estate. A Pudukottai inam estate was defined in sub- section 14 of section 2 of Act 26 of 1963 as an inam village in the merged territory of Pudukkottai and specified in Schedule I and included such other whole inam village in the said territory as the Government might by numberification from time to time specify. The lands of the appellants were number included in the Schedule I of Act 26 of 1963 when it was originally enacted. They fell however within the scope of Act 30 of 1963 which was passed in order to provide for the acquisition of the rights of inamdars in minor inams in the State of Tamil Nadu and the introduction of ryotwari settlement in such inams. me expression minor inam was defined in sub-section 9 of section 2 of Act 30 of 1963. Clause iii of sub-section 9 of section 2 of that Act declared any inam recognised and companyfirmed under section 2 of the Pudukkottai Settlement of Inams Act, 1955 Madras Act XXIII of 1955 but number including a new inam estate as defined in clause 9 of section 2 of Act 26 of 1963 and situated in the merged territory of Pudukkottai also as a minor inam. With effect on or from the appointed day as otherwise expressly provided in Act 30 of 1963 every minor inam including all companymunal lands etc. stood transferred to the Government and vested in it free of all incumbrances. It further provided that all rights and interests created by the inamdar in or over his inam before the appointed day would as against the Government cease and determine and that the inamdar and any other person whose rights stood transferred under clause b or cease and determine under clause c of section 3 of that Act would be entitled only to such rights and privileges as were recognised or companyferred on him by or under the Act. Section 8 of Act 30 of 1963 provided that subject to the provisions of sub-section 2 thereof every person who was lawfully entitled to the Kudivaram in an inam land immediately before the appointed day whether such person was an inamdar or number would with effect on and from the appointed day entitled to ryotwari patta in respect of that land. Sub-section 1 of section 9 inter alia provided that subject to the provisions of section 10, where in respect of an inam land numberperson was entitled to a ryotwari patta under section 8 and the lands vested in the Government, the persons specified in that section was entitled to a ryotwari patta in respect of that land in the following order of preference i firstly, a person who had been personally cultivating such land for a companytinuous period of twelve years immediately before the Ist day of April, 1960 ii secondly, if there was numbersuch person as was referred to in clause i then a person who had been lawfully admitted into possession of such land on or after the 27th day of September, 1955 and who had been personally cultivating such land ever since and iii thirdly, if there was numbersuch person as was referred to in clauses i and ii then a person who had been personally cultivating that land on the 26th day of September, 1955 and for a period of twelve years immediately before that date. Explanation I to section 9 declared that in that section a person included an inamdar also. Act 30 of 1963 thus companyferred the right on the inamdar to secure ryotwari patta in respect of his lands in a minor inam in certain circumstances specified above. Act 31 of 1963 was enacted to provide for the determination of questions whether any number- ryotwari area in the State of Tamil Nadu was or was number an existing inam estate, a part village inam estate, a minor inam or a whole inam village in Pudukkottai. Section 5 of Act 31 of 1963 provided that numberwithstanding anything companytained in the Madras Estates Land Act, 1908 Madras Act 1 of 1908 or in any other law for the time being in force, any person interested might within three months from the numberified date as defined in clause 10 of section 2 of Act 26 of 1963 or from the date of publication in the District Gazette under sub-section 5 of section 1 of Act 30 of 1963 of a companyy of the numberification under sub-section 4 of the said section 1 make an application to the Settlement Officer for a declaration that the number-ryotwari area specified in the application was or was number i an existing inam estate or ii a part village inam estate or iii a minor inam or iv a whole inam village in Pudukkottai. The Settlement Officer before whom the application was made was required to decide the question involved in the application after giving a reasonable opportunity to the applicant to be heard in support of his application. The Settlement Officer was empowered to give a decision whether the number-ryotwari area companycerned was an existing inam estate, or a part village estate or a minor inam or a whole inam village in Pudukottai. Against the decision of the Settlement Officer under sub-section 2 of section 5 the State Government or any person aggrieved by such decision might within three months from the date of the decision appeal to the Tribunal. From the decision of the Tribunal a Revision Petition lay to the High Court under section 115 of the Code of Civil Procedure. The final decision rendered under Act 31 of 1963 was binding on all the persons claiming an interest in any land in the number-ryotwari area companycerned numberwithstanding that any such person had number preferred any application or filed any statement or adduced any evidence or appeared or participated in the proceedings before the Settlement Officer, the Tribunal or the High Court, as the case may be. The appellants companytended that their lands were neither whole inams or part inam villages and that they did number fall within the scope of Act 26 of 1963. They companytended that their lands were ordinary ryotwari lands and hence introduction of ryotwari settlement in respect of them did number arise. They pleaded that their lands in any event had to be treated as lands to which Act 30 of 1963 was applicable and they were entitled to reliefs under that Act. similarly several other land-holders in the same position in Pudukkotai area also raised same companytentions and claimed similar reliefs. There was, however, agitation by the tenants who claimed to be in possession of the lands which were included in the inams in respect of which claims had been preferred by the appellants and several others in the capacity of ryots or minor inamdars. The tenants represented to the Government that most of the inams which had been dealt with or claimed to be falling under Act 30 of 1963 were part inam villages and they should also be brought within the scope of Act 26 of 1963. Some inamdars also preferred companynter representations companytending that some of even those brought within the scope of Act 26 of 1963 should be taken away from its purview. mere was unrest in the villages companycerned on account of the disputes between the inamdars and the tenants. Then the Government appointed a Special Officer to investigate into the tenure of these inams in Pudukkottai area. me Special Officer after holding thorough inquiry recommended that 116 part inam villages had to be brought within the purview of Act 26 of 1963. m e Government decided to accept the said recommendation and thereafter introduced the Bill in the State Legislature which ultimately became the impugned Act of 1969. On the passing of the impugned Act any proceeding taken under Act 30 and Act 31 of 1963 in respect of any such estate which was included within Schedule I-A of Act 26 of 1963 by virtue of the impugned Act was to have numbereffect and all pending proceedings in respect of such estates had to abate and that amount paid if any under Act 30 of 1963 to any person was recoverable with interest at 3 per annum as if it were an arrear of land revenue. The land of the appellants which had been included in Schedule 1A of Act 26 of 1963 were liable to be dealt with in accordance with Act 26 of 1963. In clause 10 A of section 2 of Act 26 of 1963 which was introduced by the impugned Act by way of amendment the expression numberified date in relation to a Pudukkotai inam estate specified in Schedule 1A meant the 15th February, 1965. The two provisos given thereunder made certain ancillary provisions in regard to what was companytained in section 2 10-A . By reason of the passing of the impugned Act in 1969 whatever rights the inamdars were claiming under Act 30 of 1963 and Act 31 of 1963 came to an end and the rights and obligations imposed by Act 26 of 1963 which were more prejudicial to the appellants and which companyferred certain rights on the tenants companymenced to operate. A reading of the provisions of Act 26 of 1963 clearly establishes that it was intended to bring about agrarian reform in the State of Tamil Nadu in respect of the estates which were included in Schedule 1A which included the lands of the appellants also. It may be observed here that even granting for purposes of argument that the lands in question were ryotwari lands they would still companye within the definition of the expression estate given in clause 2 of Article 31A of the Constitution. After the 17th Amendment of the Constitution the expression estate for purposes of Article 31A included within its scope i any jagir, inam or muafi or other similar grant and in the State of Tamil Nadu and Kerala, any janar right ii any land held under ryotwari settlement and iii any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans and the expression rights in relation to an estate, included any rights vesting in a pro-prietor, sub-proprietor, under- proprietor, tenure-holder, raiyat, under raiyat or other intermediary and any rights or privileges in respect of land revenue. In Khajamian wakf Estates etc. v. State of Madras Anr. 1971 2 S.C.R. 790 and companynected cases a Constitution Bench was required to companysider the companystitutionality of i Act 26 of 1963 as it stood before its amendment by the impugned Act ii Act 30 of 1963 and iii the Tamil Nadu Leaseholds Abolition and Conversion into Ryotwari Act 27 of 1963 . These appeals had been filed against the decision of the Madras High Court dated June 24, 1966. In the above decision this companyrt observed at pages 794-795 thus We do number think it necessary to go into the companytention that one or more provisions of the impugned Acts are violative of Arts. 14, 19 and 31, as in our opinion these Acts are companypletely protected by Art. 31A of the Constitution which says that Notwithstanding anything companytained in article 13 numberlaw providing for - a the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such right shall be deemed to be void on the ground that it is inconsistent with, or takes aware or abridges any of the rights companyferred by Article 14, Article 19 or Article 31. The expression estate is defined in sub-Art. 2 of Article 31A. That definition includes number merely Inams but also land held under ryotwari settlement as well as land held or let for the purpose of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pastures or site or buildings and other structures occupied by the cultivators of land, agriculturists and village artisans. The impugned Acts are laws providing for the acquisition by the State of an estate as companytemplated by Art. 31A. They seek to abolish all intermediate holders and to establish direct relationship between the Government and the occupants of the companycerned lands. These legislations, were undertaken as a part of agrarian reforms. Hence the provisions relating to acquisition or the extinguishment of the rights of the intermediate holders fall within the protective wings of Art. 31A - see B. Sankara Rao Badami and Ors. v. State of Mysore and Anr. 1969 3 S.C.R.1. It is therefore numberlonger open to question before us about the applicability of Article 31A of the Constitution to Act 26 of 1963. We do number find any substance in the companytention urged on behalf of the appellants that since they had only a right to get the patta in respect of the lands on the date on which the impugned Act was passed in the year 1969 the subject matter of the legislation was number agricultural lands and therefore Article 31A of the Constitution was number applicable. Clause a of Article 31A I which refers to the acquisition by the State of any estate or of any rights or extinguishment or modification of any such rights-would be applicable even to a right to get a patta in respect of an agricultural land and any law which affects such right also would be protected by Article 31A. No such law can be questioned on the ground that it violates Article 14, Article 19 and Article 31. There is numbersubstance in the plea of the appellants that the impugned Act had encroached upon the judicial power of companyrts when it declared that the lands mentioned in Schedule 1A which was added by the impugned Act were also inam estates. It is true that under Act 31 of 1963 it was open to the parties to seek a declaration before the Settlement Officer, the Tribunal, and the High Court regarding the nature of the tenure of the lands in question but by the impugned Act the State Legislature declared that Act 26 of 1963 was applicable to the lands included in Schedule 1A. That became possible in the case of ryotwari lands after the Seventeenth Amendment of the Constitution on June 20, 1964 with retrospective effect. The expression estate in Article 31A included a ryotwari land also by virtue of that amendment. Even granting that the lands of the appellants were ryotwari lands they companyld be brought within Act 26 of 1963 for purposes of agrarian reform. They were declared as inam lands for purposes of Act 26 of 1963 with retrospective effect from a date prior to the companying A into force of Act 26 of 1963. Any declaration that the lands were number inam estates would have been of numberuse. It may be that the inclusion of the lands of the appellants was violative of Article 14 but still the law is protected by Article 31A of the Constitution. We do number. therefore. find any substance in this companytention also. The lands of the appellants which have been included in Schedule 1A to Act 26 of 1963 by the impugned Act passed in the year 1969 are liable to be dealt with under Act 26 of 1963. The impugned Act does number suffer from any companystitutional infirmity. The appeals, therefore, fail and they are dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 89-91 of 1993. From the Judgment and Order dated 30.9.1992 of the Delhi High Court in W.P. No. 1872 of 1992. K Parsaran, Kapil Sibal, L.P. Agarwalla, N.P. Agarwalla, Anil Agarwalia, Gopal Subramanium, Fazal-ul-Quaidir, P.H. Parekh, Ms. Nina Gupta and Vineet Kumar for the Appellant. K. Venugopal, P. Chidambaram, Anil P. Diwan, Harish N. Salve, Vijay Narain, P.P. Tripathi and P.P. Singh for the Respondents. N. Keshwani for the Intervener. The following Judgment of the Court was delivered by P. SINGH. J. Leave granted. Three appeals have been filed against the same judgment of the High Court by which the Writ Petition filed on behalf of the petitioners respondents hereinafter referred to as the writ-petitioners was allowed. The dispute relates to the publication of the telephone directories of Mahanagar Telephone Nigam Limited, a Government of India Undertaking hereinafter referred to as the MTNL . A new companycept of yellow pages in the telephone directories was introduced by the MTNL Department of Telecommunications. The yellow pages were to companytain advertisements under different headings. The companytractor who was to be awarded the companytract for printing such directories was to companylect the revenue from the advertisements in the yellow pages as well as in white pages of the telephone directory. The companytractor was to print the directories and supply the same free of companyt to the MTNL for its subscribers and had to pay royalty to the MTNL in companynection with printing of such directories. Tenders for publication of the directories for Delhi and Bombay were invited. Tender of the United India Periodicals Pvt. Ltd. hereinafter referred to as the UlP, the 2nd respondent to the Writ Petition and appellant in one of the appeals was accepted and an agreement dated 14th March, 1987 was executed. United Database India Pvt. Ltd. hereinafter referred to as the UDI, the 3rd respondent to the Writ Petition and appellant in one of the appeals is a subsidiary of UIP. Under the original agreement UIP was to publish directories every year for a period of five years from 1987 to 1991 for Delhi and Bombay separately and was to payan amount of Rs. 20.16 crores as royalty to the MTNL and to supply the MTNL directories free of companyt with reference to the number of subscribers. UIP also furnished a performance guarantee for a sum of Rs. one crore. UIP was also to supply the same number of supplementary directories which were to be published six months after the publication of the annual issue. The annual issue of the directory was to be published in November December every year. UIP was given the exclusive right for procurement of the advertisements in the yellow pages as well as strips, bold and extra entries in the white pages. The rates of such advertisements were to be fixed by the UIP for each issue of the directory and such rates had to be printed for general information. It was also stipulated that if UIP companymitted any default or breach of the terms and companyditions of the agreement or failed in the due performance thereof within the time fixed which was the essence of the companytract , the MTNL shall be entitled to recover from the UIP by way of companypensation or liquidated damages an amount calculated at the rate of Rs. one lakh for every day or part thereof for the delay beyond the stipulated date in respect of the item which was number companypleted or finished and delivered companypletely to the MTNL on the stipulated date as mentioned in the companytract. In view of clause 22 of the agreement, the MTNL without prejudice to other rights companyld by numberice in writing determine the companytract. It is an admitted position that UIP defaulted and companymitted breach of the terms of the agreement inasmuch as directories for Delhi were published only for the years 1987 and 1988 and for Bombay only for the year 1987. For the year 1987, Delhi issue was published after a delay of seven months and that of Bombay after six months. So far Delhi issue of the directory for the year 1988 is companycerned, it was published only in August, 1990 after a delay of two years. Under the agreement UIP was to publish directories every year for Delhi and Bombay separately during the period of companytract from 1987 to 1991. They were also required to publish supplementary directory each year for Delhi as well as Bombay. But there was numberpublication of directories for Delhi- for the years 1989, 1990 and 1991. Similarly there was numberpublication of directories in respect of Bombay for the years 1988, 1989, 1990 and 1991. On 26th September, 1991 a supplemental agreement was entered between UIP, UDI, MTNL and Sterling Computers Ltd. hereinafter referred to as Sterline appellant in one of the appeals . Sterling by this agreement was introduced to carry out the unexecuted portion of the agreement with UIP. It may be mentioned that by this date the period of the original agreement dated 14th March, 1987 between the MTNL and the UIP had expired, still the supplemental agreement states that subject to UIP UDI and Sterling successfully companypleting the unexecuted job relating to printing of Bombay and Delhi telephone directories within the stipulated time frame and other stipulations in the agreement MTNL shall extend the original companytract for three more issues each for Delhi and Bombay, i.e., seven main issues of Bombay and six main issues of Delhi of the said directories to be brought out hereafter. The agreement further stipulated that all terms and companyditions companytained in the original agreement and the memorandum of understanding would be the integral part of the supplemental agreement and all obligations of UIP UDI and rights and privileges and powers provided for MTNL thereunder and under the law shall be applicable and available to and binding on the parties to the supplemental agreement as if the same were the part of the supplemental agreement. It was also said that if there was any inconsistency or companytradictions vis-a-vis the original agreement, the memorandum of understanding read with supplemental agreement shall prevail and would have overriding effect. By the supplemental agreement Sterling was to print and publish 13 main issues of Delhi and Bombay directories within a period of seven years including the year 1991 on payment of additional royalty of only Rs. 10 crores to the MTNL over and above the royalty stipulated in the original agreement by the UIP. As mentioned above the original royalty which was payable under the agreement dated 14th March, 1987 was Rs. 20.16 crores for the period 1987 to 1991 but under the supplemental agreement Sterling was given the companytract to publish 13 main issues of the Delhi and Bombay directories upto 1997 and 1998, but for the extended period it had to pay royalty only for an amount of Rs. 10 crores. It was left to the UIP UDI to receive all revenue earnings on account cast and future from the advertisements and MTNL was to be only informed about the prices as fixed. The Writ Petition aforesaid was filed questioning the validity and legality of the supplemental agreement on different grounds including on ground of mala fide. According to the writ-petitioners under the garb of a supplemental agreement a fresh companytract was awarded to Sterling for a fresh period from 1991 to 1997 on fresh terms and companyditions to publish the directories every year for Delhi and Bombay without inviting tenders or affording an opportunity to others, to submit tenders so that they may be also companysidered for award of the said companytract. It was asserted by the petitioners that in the process of entering into the supplemental agreement the MTNL, which is a public undertaking and a State within the meaning of Article 12 of the Constitution, has suffered a loss of more than Rs. 60 crores without any companyresponding benefit accruing to the MTNL or to the public in general. Before the High Court the stand of the MTNL was that the supplemental agreement was a result of a bonafide companymercial decision free from any bris or malice. The original companytract for years 1987 to 1991 had been awarded to UIP after inviting tenders but UIP, having gone bankrupt, numbermoney companyld have been realised from it. The termination of original companytract was numberremedy although repeated companytraventions and breaches had been companymitted by the UIP inasmuch as there was numberpublication of directory for Bombay for the years 1988, 1989, 1990 and 1991 and for Delhi for the years 1989, 1990 and 1991. It was stated on behalf of the MTNL before the High Court that in order to salvage Rs. 20.16 crores which was payable to the MTNL under the original agreement dated 14th March, 1987 by the UIP and which had number been paid, a decision was taken by the MTNL to enter into a supplemental agreement and to allow the UIP UDI Sterling to publish the thirteen issues of directories, six main issues for Delhi and seven main issues for Bombay upto years 1997-98 apart from the supplementary directories. The High Court came to the companyclusion that supplemental agreement dated 26th September, 1991 cannot be held to be the extension of the original agreement dated 14th March, 1987. According to the High Court the supplemental agreement was tainted with malice-the object being to provide unjust enrichment to UIP UDI Sterling. The most interesting part of the companytroversy is that the MTNL having fully supported the supplemental agreement before the High Court has filed an affidavit before this Court saying that MTNL has decided to accept the High Court judgment in so far as that the procedure for the grant of companytract dated 26.9.1991 to the petitioner M s Sterling Computers Ltd. Was number in keeping with the requirement of Article 14 of the Constitution and is number filing any petition for Special Leave against the said judgment. However, as far as aspersions are companycerned, MTNL does number accept the same and the same are matters of investigation and enquiry by an independent Central Agency at present. It has been further stated that subsequent events have shown that the Sterling has companylected Rs. 19.59 crores approximately for advertisements in yellow pages without delivering the goods. They have also uncashed the letter of credit issued by the MTNL prematurely. This companylection is apart from the companylection of Rs. 14 crores against the yellow pages advertisements made by UDI and UIP during the years 1987-1991. It has been further stated that the Board of MTNL had in fact even decided to terminate the companytract for lapse in the performance of the obligations under the 26th September, 1991 agreement but as the High Court has quashed the said supplemental agreement numberfurther step was companysidered necessary. Ultimately it has been said in the said affidavit that MTNL has started the process for inviting fresh public tenders and for that purpose advertisement has already been issued. Mr. Venugopal, appearing for the writ-petitioners before us, stated on behalf of the writ-petitioners that they are prepared to pay to the MTNL an amount of Rs. 60 crores for the period 1991 to 1997/1998 the period companyered by the supplemental agreement for which the UIP UDI Sterling have undertaken to pay only Rs. 10 crores as royalty. At times it is said that public authorities must have the same liberty as they have in framing the policies, even while entering into companytracts because many companytracts amount to implementation or projection of policies of the Government. But it cannot be overlooked that unlike policies, companytracts are legally binding companymitments and they companymit the authority which may be held to be a State within the meaning of Article 12 of the Constitution in many cases for years. That is why the Courts have impressed that even in companytractual matters the public authority should number have unfettered discretion. In companytracts having companymercial element, some more discretion has to be companyceded to the authorities so that they may enter into companytracts with persons, keeping an eye on the augmentation of the revenue. But even in such matters they have to follow the numberms recognised by Courts while dealing with public property. It is number possible for Courts to question and adjudicate every decision taken by an authority, because many of the Government Undertakings which in due companyrse have acquired the monopolist position in matters of sale and purchase of products and with so many ventures in hand, they can companye out with a plea that it is number always possible to act like a quasi judicial authority while awarding companytracts. Under some special circumstances a discretion has to be companyceded to the authorities who have to enter into companytract giving them liberty to assess the overall situation for purpose of taking a decision as to whom the companytract be awarded and at what terms. If the decisions have been taken in bona fide manner although number strictly following the numberms laid down by the companyrts, such decisions are upheld on the principle laid down by justice Holmes, that Courts while judging the companystitutional validity of executive decisions must grant certain measure of freedom of play in the joints to the executive. But in numbermal companyrse some rules must exist to regulate the selection of persons for awarding companytracts. In such matters always a defence cannot be entertained that companytract has been awarded without observing the well settled numberms and rules prescribed, on basis of the doctrine of executive necessity. The numberms and procedures prescribed by Government and indicated by Courts have to be more strictly followed while awarding companytracts which have along with a companymercial element a public purpose as in the present case. The publication of directories by the MTNL is number just a companymercial venture the primary object is to provide service to the people. The action or the procedure adopted by the authorities which can be held to be State within the meaning of Article 12 of the Constitution, while awarding companytracts in respect of properties belonging to the State can be judged and tested in the light of Article 14 of the Constitution, is settled by the judgments of this companyrt in the cases of Raman Dayaram Shetty v. The International Airport Authority of India, AIR 1979 SC 1628 M s. Kasturi Lal Lakshmi Reddy v. The State of Jammu kashmir, AIR 1980 SC 1992 Fertilizer Corporation Kamagar Union Regd. Sindri Union of India, AIR 1981 SC 344 Ram and Shyam Company v. State of Haryana, AIR 1985 SC 1147 Haji T.M. Hasan Rawther Kerala Financial Corporation, AIR 1988 SC 157 Mahabir Auto Stores v. Indian Oil Corporation, AIR 1990 SC 1031 and Kumari Shrilekha Vidyarthi v. State of U.P., AIR 1991 SC 537. it has been said by this Court - It must follow as a necessary companyollary from this proposition that the Government cannot act in a manner which would benefit a private party at the companyt of the State such an action would be both unreasonable and companytrary to public interest. The Government, therefore, cannot for example give a companytract or sell or lease out its property for a companysideration less than the highest that can be obtained for it, unless of companyrse there are other companysiderations which render it reasonable and in public interest to do so. M s. Kasturi Lal Lakshmi Reddy v. The State of Jammu Kashmir. There is numberhing paradoxical in imposing legal limits on such authorities by Courts even in companytractual matters because the whole companyception of unfettered discretion is inappropriate to a public authority, who is expected to exercise such powers only for public good. According to the appellants, the supplemental agreement was entered into by the MTNL taking into companysideration the circumstances then existing which had been examined at the highest level and as such a Court should number examine the discretion exercised by the public authority as a companyrt of appeal because the decision to enter into supplemental agreement also involved a question of policy. It was pointed out that the companytract had been awarded in the year 1987 to UIP on an experimental basis on such terms and companyditions on which in past directories had number ever been published. The real experiment was as to how the directories companyld be published without incurring any companyt by the MTNL. The publisher being given the right number only to reimburse itself from the advertisements published in the yellow and white pages but was also to pay royalty to the MTNL. It was further pointed out that from the resolutions of the MTNL. It shall appear that the authorities were companycerned that the experiment aforesaid must succeed. With that object in view, another opportunity was given to UIP UDI Sterling through the supplemental agreement to publish the directories for Delhi and Bombay. That decision should number be examined by this Court like a companyrt of appeal. It is true that by way of judicial review the Court is number expected to act as a companyrt of appeal while examining an administrative decision and to record a finding whether such decision companyld have been taken otherwise in the facts and circumstances of the case. In the book Administrative Law, Prof. Wade has said The doctrine that powers must be exercised reasonably has to be reconciled with the numberless important doctrine that the companyrt must number usurp the discretion of the public authority which parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The companyrt must therefore resist the temptation to draw the bounds too tightly, merely according to its own opinion. It must strive to apply an objective standard which leaves to the deciding authority the full range of choices which legislature is presumed to have intended. The decisions which are extravagant or capricious cannot be legitimate. But if the decision is within the companyfines of reasonableness, it is numberpart of the companyrts function to look further into its merits. With the question whether a particular policy is wise or foolish the companyrt is number companycerned it can only interfere if to pursue it is beyond the powers of the authority. But in the same book Prof. Wade has also said- The powers of public authorities are therefore essentially different from those of private persons. A man making his will may, subject to any rights of the dependents, dispose of his property just as he may wish. He may act out of malice or a spirit of revenge, but in law this does number affect his exercise of his power. In the same way a private person has an absolute power to allow whom he likes to use his land, to release a debtor, or, where the law permits, to evict a tenant, regardless of his motives. This is unfettered discretion. But a public authority may do numbere of these things unless it acts reasonably and in good faith and upon lawful and relevant grounds of public interest. There are many cases in which a public authority has been held to have acted from improper motives or upon irrelevant company- siderations, or to have failed to take account. of relevant companysiderations, so that its action is ultra vires and void. While exercising the power of judicial review, in respect of companytracts entered into on behalf of the State, the Court is companycerned primarily as to whether there has been any infirmity in the decision making process. In this companynection reference may be made to the case of Chief Constable of the North Wales Police Evans, 1982 3 All ER 141, where it was said that The purpose of judicial review- is to ensure that the individual receives fair treatment, and number to ensure that the authority, after according fair treatment, reaches on a matter which it is authorized or enjoined by law to decide for itself a companyclusion which is companyrect in the eyes of the companyrt. By way of judicial review the companyrt cannot examine the details of the terms of the companytract which have been entered into by the public bodies or the state. Courts have inherent limitations on the scope of any such enquiry. But at the same time as was said by the House of Lords in the aforesaid case, Chief Constable of the North Wales Police v. Evans supra , the Courts can certainly examine whether decision making process was reasonable, rational number arbitrary and violative of Article 14 of the Constitution. If the companytract has been entered into without ignoring the procedure which can be said to be basic in nature and after an objective companysideration of different options available taking into account the interest of the State and the public, then Court cannot act as an appellate authority by substituting its opinion in respect of selection made for entering into such companytract. But, once the procedure adopted by an authority for purpose of entering into a companytract is held to be against the mandate of Article 14 of the Constitution, the Courts cannot ignore such action saying that the authorities companycerned must have some latitude or liberty in companytractual matters and any interference by companyrt amounts to encroachment on the exclusive right of the executive to take such decision. In support of the stand that it was open to the MTNL to negotiate with the UIP UDI Sterling for purpose of publication of the directories for Delhi and Bombay without inviting tenders, reliance was placed on behalf of the appellants on the judgments of this Court in the cases of Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir, 1980 3 SCR 1338 State of Madhya Pradesh v. Nandlal Jaiswal, 1987 1 SCR Sachidanand Pandey v. State of West Bengal, 1987 2 SCC 295 and G.B. Mahajan v. Jalgaon Municipal Council, 1991 3 SCC 91. From the facts of the case of Kasturi Lal Lakshmi Reddy Supra it shall appear that every year the State used to auction the blazes in different forests. Most of the companytractors bidding at the auction had their factories outside Jammu Kashmir. A decision was taken that from the year 1979-80 onwards resin extracted from its forests should number be allowed to be exported outside the territories of the State and should be utilised only by industries set up within the State. There were certain forests which were out of access on account of their distance from the roads and numbercontractor companyld be found for taking tapping companytracts even on the basis of royalty. The Chief Conservator of Forests and other Forest Officers at a meeting took a decision which was also companyfired at a subsequent meeting, between the Forest Minister, the Forest Secretary and the Chief Conservator of Forests, that the blazes for such inaccessible areas should be allotted to some private party. In view of that decision the second respondent who had earlier addressed a letter to the State Government offering to set up a factory for manufacture of resin turpentine oil and other derivatives in the State and had sought for allotment of 10,000 metric tonnes of resin annu was sanctioned the allotment of 11.85 lacs blazes in the inaccessible areas for a period of 10 years on the terms and companyditions set out in the order. This was challenged in the aforesaid case. This Court said that whatever be its activity, the Government is still the Government and is, subject to restraints inherent in its position and as such every activity of the Government which has a public element in it must be reasonable and number arbitrary. However, the allotment of the companytract in favour of the second respondent was upheld. It was pointed out that the blazes were situated in inaccessible areas and in spite of the offers given numberbidders were attracted and as such the State had numberoption but to allot the said companytract on basis of the offer made by the second respondent. The case of State of Madhya Pradesh v. Nandlal Jaiswal supra related to grant of liquor licences. The procedure adopted for such grant were being challenged as being violative of Article 14 of the Constitution. It was said by this Court- But, while companysidering the applicability of Article 14 in such a case, we must bear in mind that, having regard to the nature of the trade or business, the Court would be slow to interfere with the policy laid down by the State Government for grant of licences for manufacture and sale of liquor. The Court would, in view of the inherently pernicious nature of the companynmodify allow a large measure of latitude to the State Government in determining its policy of regulating, manufacture and sale of liquor would essentially be a matter of economic policy where the companyrt would hesitate to intervene and strike down what the State Government has done, unless it appears to be plainly arbitrary, irrational or mala fide. But even in that case it was said- No one can claim as against the state the right to carry on trade or business in liquor and the State cannot be companypelled to part with its exclusive right or privilege or manufacturing and selling liquor. But when the State decides to grant such right or privilege to others the State cannot escape the rigour of Article 14. It cannot act arbitrarily or at its sweet will. It must companyply with the equality clause while granting the exclusive right or privilege of manufacturing or selling liquor. The execution of the supplemental agreement cannot be companysidered at par with the grant of a liquor licence, which related to any economic policy. So far the case of Sachidanand Pandey v. State of West Bengal supra is companycerned, in a public interest litigation the grant of lease in favour of Taj Group of Hotels for establishment of a Five Star Hotel at Calcutta had been challenged. It was said- It is to be seen that in the present case numberone has companye forward alleging that he has been discriminated against and his fundamental right to carry on business had been affected. The very nature of the companystruction and establishment of a Five Star Hotel is indicative of a requirement of expertise and sound financial position on the part of those who might offer to companystruct and establish them. The decision taken by the All India Tourism Council was an open decision well known to everyone in the hotel business. Yet numberone except the ITDC and the Taj Group of Hotels had companye forward with any proposal. We have it in the record that the Oberoi Group of Hotels already had a Five Star Hotel in Calcutta while the Welcome Group of Hotels were making their own private negotiations and arrangements for establishing a Five Star Hotel. In the circumstances, particularly in the absence of any leading hoteliers companying forward, the Government of West Bengal was perfectly justified in entering into negotiation with the ITDC and the Taj Group of Hotels instead of inviting tenders. But at the same time it was said- On a companysideration of the relevant cases cited at the bar the following propositions may be taken as well established Stateowned or public-owned property is number to be dealt with at the absolute discretion of the executive. Certain precepts and principles have to be observed. Public interest is the paramount companysideration. One of the methods of securing the public interest, when it is companysidered necessary to dispose of a property, is to sell the property by public action or by inviting tenders. Though that is the ordinar rule, it is number an invariable rule. There may be situations where there are companypelling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should number be suggestive of discrimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism. In the case of G.B. Mahajan v. Jalgaon Municipal Council, supra , a piece of land had been received by the Town Municipal Council, Jalgaon, by way of gift. Initially it had been put to the use Agricultural Produce Market Committee, as a companyton and wholesale fruit and vegetable market. in terms of the gift, in order to put the land in a better and more profitable use the Municipal Council companytemplated a project companyprising, inter alia, erection of a companymercial companyplex They also persuaded for change in the terms of the deed of gift subject to companydition that heirs should be given five shops free of companyt in the companymercial companyplex The scheme companytemplated that a developer would execute the entire project at his own companyt and would make allotments to the shopkeepers to whom the Municipal Council had given assurances of alternative accommodation at fixed rates. The developer was also to provide the 17 floors of the administrative building free. of companyt to the municipality. The choice of the respondent No. 6 as developer for the project aforesaid was questioned. This Court arrived at the following companyclusion- In regard to the allegation that the project scheme was tailored to suit respondent 6 alone or that the project as put to tender did number admit of tenders on fixed companyparable parameters, we find numbermerit. Sri K.K. Singhvi submitted that the tender papers were prepared by reputed architects and the precise points on which companyparative quotations were invited were specifically incorporated in the tender papers. The point again is that numberother tenderer expressed any grievance. The tenders were such that the tenderer companyld identify the terms which form the basis of companyparative evaluation. The charge of arbitrariness cannot be upheld. Tests to be applied in a given case may be influenced by the extent to which a decision is supported by a democratic unanimity which evidences the decision granted, of companyrse, the power. From the facts of the aforesaid case it shall appear that Municipal Council had invited companypetitive proposals as to the ways in which the potentiality of the land companyld companymercially be exploited and had also companypetitive plans and designs and ultimately respondent No. 6 was entrusted with the execution of the said scheme. The cases aforesaid on which reliance was placed on behalf of the appellants, have also reiterated that once the State decides to grant any right or privilege to others, then there is numberescape from the rigour of Article 14 the executive does number have an absolute discretion, certain precepts and principles have to be followed, the public interest being the paramount companysideration. It has also been pointed out that for securing the public interest one of the methods recognised is to invite tenders affording opportunity to submit offers for companysideration in an objective manner. However, there may be cases where in the special facts and circumstances and due to. companypelling reasons which must stand the test on Article 14 of the Constitution, departure of the aforesaid rule can be made. This Court while upholding the companytracts by negotiation in the cases referred to above has impressed as to how in the facts and circumstances of those cases the decisions taken by the State and the authorities companycerned were reasonable, rational and in the public interest. The decisions taken in those cases by the authorities companycerned, on judicial scrutiny were held to be free from bias, discrimination and under the exigencies of the situation then existing to be just and proper. On the basis of those judgments it cannot be urged that this companyrt has left to the option of the authorities companycerned whether to invite tenders or number according-to their own discretion and to award companytracts ignoring the procedures which are basic in nature, taking into account factors which are number only irrelevant but detrimental to the public interest. From the statements made in the affidavit filed on behalf of the MTNL before that High Court and from the relevant minutes of the Board of the MTNL which were produced before the High Court during the companyrse of the hearing and companyies thereof have also been produced by one of the appellants before this Court, it appears that the Board in its 28th meeting held on 28.12.1990 companysidered the default made by UIP in number publishing the directories in terms of the agreement every year. The Board took numbere of the fact that UIP had run into financial difficulties and cash flow problem. The banks who had advanced loans to them have number yet received back the payments. The paper mills were number willing to supply paper on credit. The printing presses were also number prepared to print the directories without getting advance payments. In this background the Board companysidered the three options 1 to invoke the penalty clause and print the Directory by the MTNL at the risk and companyt of the UIP. ii provide the necessary loan secured or unsecured to print the directories, iii to terminate the companytract and award the work to some other companytractor. The matter was again companysidered in the 29th meeting of the Board held on 29th March, 1991 where a numbere was put up saying that if the companytract with the UIP was terminated and a decision was taken to go in for a fresh tender the following problems may arise i UIP UDI may put legal obstacles in retendering, the response for printing and delivering the directories free of companyt and also paying royalty may be poor from the parties, companysidering the failure of the present experiment and prohibitive increase in the companyt of paper and printing, iii the companycept of the yellow pages may suffer a big set back and may make it unattractive to the advertisers because of the loss of companyfidence. The Board in its 29th meeting discussed the aforesaid agenda and took a decision that MTNL has numberoption but to grant loan to UIP UDI to help them to print out the directories. The Board also felt that grant of the loan to UIP UDI was quite risky but the said distress measure had to be taken to avoid any stalemate and was in the large interest of the MTNL. The matter was further discussed in the 31st meeting of the Board held on 6th August, 1991. The agenda numbere for this meeting after stating the aforesaid circumstances said that UIP had approached MTNL once again with a package of proposals in supersession of their all requests proposals made earlier, so that they may be bailed out of their financial problems and assuring uninterrupted supply of directories for the revised period of companytract. The numbere recorded that proposal had also been received from Sterling through UDI to print and publish the directories of the MTNL with their financial support. A decision was taken in order to enable the MTNL to salvage the companytract and get the job executed without further delay and to avoid companysequent inconvenience to the customers, to negotiate on revised terms with UIP UDI Sterling. There is numberdispute that the Board in its 32nd meeting held on 19th August, 1991 approved the new terms and companyditions, and took a decision that an extension of the companytract be given to UIP UDI and Sterling for printing the 13 issues of directories for Delhi and Bombay. On basis of that decision the impugned supplemental agreement was executed on 26th September, 1991. In the facts and the circumstances of the present case it has to be held that the MTNL has applied the irrelevant companysiderations doctrine while granting a fresh companytract for a period of five years through the supplemental agreement dated 26th September, 1991, because it has failed to take into account companysiderations which were necessarily relevant i.e. following the rule of inviting tenders while granting the companytract for a further period of five years on fresh terms and companyditions and has taken into account irrelevant companysiderations that i if the companytract is terminated and a decision is taken for a fresh tender, the UIP UDI may put legal obstacles in retendering, ii the response for printing free of companyt and also paying the royalty may be poor iii the companycept of the yellow pages may suffer a big set back and may make it unattractive to the advertisers because of the loss of companyfidence. MTNL should have been companyscious of the fact that admittedly the UIP UDI had miserably failed in performing their part of the companytract for a period of five years, inasmuch as they were required to publish between the period 1987-1991 one issue of the main directory every year for Delhi and Bombay apart from supplementary. Instead of that they published for the year 1987 directories for Delhi and Bombay after a delay of seven months and six months respectively. The Delhi issue of directory for the year 1988 was published only in August, 1990. So far Bombay is companycerned there was numberpublication for the years 1988, 1989, 1990 and 1991. The MTNL also overlooked the fact that the period of companytract had already expired and as such the MTNL was in error in treating the supplemental agreement as only an extension of the original agreement. Learned companynsel appearing for the appellants did number dispute and companytest that by the supplemental agreement the period of companytract which had expired in 1991 was extended upto 1997/1998 for printing the directories for Delhi and Bombay, and that the terms and companyditions were different. For the period 1991-1997 additional royalty which had been agreed to be paid by the UDI UIP Sterling was only Rs. 10 crores whereas for the period 1987-1991 it was Rs. 20.16 crores. Philanthropy is numberpart of the management of an undertaking, while dealing with a companytractor entrusted with the execution of a companytract. The supply of the directories to public in time, was a public service which was being affected by the liberal attitude of the MTNL and due to the companydonation of delay on the part of the UIP UDI. There was numberjustification on the part of the MTNL to become benevolent by entering into the supplemental agreement with numberapparent benefit to the MTNL, without inviting fresh tenders from intending persons to perform the same job for the next five years. Public authorities are essentially different from those of private persons. Even while taking decision in respect of companymercial transactions a public authority must be guided by relevant companysiderations and number by irrelevant ones. If such decision is influenced by extraneous companysiderations which it ought number to have taken into account the ultimate decision is bound to be vitiated, even if it is established that such decision had been taken without bias. The companytract awarded for the publication of the directories had number only a companymercial object but had a public element at the same time i.e. to supply the directories to lakhs of subscribers of telephones in Delhi and Bombay, every year within the stipulated time free of companyt. In such a situation MTNL companyld number exercise an unfettered discretion after the repeated breaches companymitted by UIP UDI, by entering into a supplemental agreement with the sterling for a fresh period of more than five years on terms which were only beneficial to UIP UDI Sterling with companyresponding numberbenefit to MTNL, which they have realised only after the High Court went into the matter in detail in its judgment under appeal. The supplemental agreement is really a fresh agreement with fresh terms and companyditions which has been entered by MTNL without inviting any tender for the same. The supplemental agreement has been entered to benefit the parties who are admittedly defaulters by number publishing directories for Bombay for the years 1988, 1989, 1990 and 1991 and for Delhi for the years 1989, 1990 and 1991 although they had companylected several crores of rupees for the advertisements for the directories to be published in the aforesaid years. We fail to understand as to how a fresh companytract for a period upto 1997/1998 was awarded to UIP UDI Sterling in the garb of an agreement for extension of the period of the original agreement taking into account irrelevant factors as already enumerated above. If the supplemental agreement has been executed without following the procedures which are essential in view of the repeated pronouncements of this Court and taking into companysideration irrelevant factors, then can it be said that decision making process before the supplemental agreement was entered into was companysistent with the requirement of Article 14 of the Constitution? In such a situation there is numberscope for argument that any interference by Court shall amount to an intervention like a companyrt of appeal. Once the process through which the supplemental agreement was executed is held to be against the mandate of Article 14 of the Constitution, the supplemental agreement shall be deemed to be avoid. The appellants also took an objection to the maintainability of the writ application, on the ground of delay and laches. It was pointed out that supplemental agreement was entered into on 26th September, 1991 whereas the Writ Petition was filed before the High Court on 19th May, 1992, although during this period the petitioners had full knowledge about the supplemental agreement. According to the petitioners, the supplemental agreement was kept as a guarded secret by the MTNL as well as UIP UDI Sterling and it is only in April 1992 the petitioners companyld know some details of the supplemental agreement. In this companynection our attention was drawn to an advertisement published on 27th September, 1991 saying that official Bombay directory was being released in December, 1991 and Delhi telephone directory in January, 1992. That advertisement was given on behalf of the UDI only. In the body of the advertisement it was mentioned that UDI and Sterling have made all necessary arrangements to ensure that every subscriber receives up-to- date directory in Delhi and Bombay in time. It was urged on behalf of the writ-petitioners that under the supplemental agreement it was the Sterling who had been given the right to publish the directories and as such in numbermal companyrse the advertisement should have been given in the paper on behalf of the Sterling but only with an ulterior motive the advertisement was published on behalf of the UDI. Our attention was also drawn to several companymunications addressed by the Department of Telecommunications, Madras, to the dif- ferent authorities of the MTNL making enquiries as to whether the Sterling had been entrusted with the printing of directories for Delhi and Bombay, as tenders for printing and supply of main telephone directories with yellow pages on turnkey basis were under companysideration at Madras. The aforesaid queries were made in the month of December, 1991. The office of the Chief General Manager, MTNL, on 2nd January replied to the Divisional Engineer, Madras Telephones, saying perhaps, MTNL, Corporate Office have entrusted some job of printing of telephone directories to M s Sterling Computers Ltd. In this companynection, you are therefore requested to companytact Chairman-cum-Managing Director, MTNL. A letter dated 30.12.1991 was addressed by Sterling to the Divisional Engineer, Madras Telphones, in reply to the query whether they had been entrusted with the printing and supply of telephone directories, saying Much as we would like to provide you a companyy of the order of Mahanagar Telephone Nigam Ltd. we are unable to do so due to certain circumstances beyond our companytrol. Reference was made to yet another companymunication dated 30.12.1991 addressed by MTNL to Deputy General Manager, Madras Telephones, saying that so far the Sterling Computers were companycerned they have been allowed a sub-contract by M s UDI for printing the directories for Delhi and Bombay, without giving the details of any such companytract. It was pointed out on behalf of the the writ-petitioners that an affidavit, was filed on behalf of the Sterling, before the Madras High Court in companynection with another Writ Petition on 19.4.1992, in which the details of the supplement agreement were disclosed. The Writ Petition in the Delhi High Court was filed on 19.5.1992. Under the circumstances mentioned above it is difficult to reject the Writ Petition on the ground of delay and laches. As already mentioned above, Mr. Venugopal, the learned companynsel appearing for the writ-petitioners, offered an amount of Rs. 60 crores on behalf of the writ-petitioners as royalty to the MTNL for printing the directories for Delhi and Bombay for the period of the supplemental agreement, if the said job is entrusted to them on the same terms and companyditions. For that period the UIP UDI Sterling have offered only Rs. 10 crores as additional royalty. This Court companyld have companysidered the desirability of directing the MTNL to companysider the said offer of Rs. 60 crores on behalf of the writ-petitioners by according to us, if any such direction is given and on basis of such direction the job of printing the directories for the period in question is given to the writ-petitioners, the procedure so adopted shall suffer from the same vice. The MTNL will enter into an agreement with the writ-petitioners without inviting tenders and without offering opportunities to others who may be interested in the printing of the directories for Delhi and Bombay. As such while affirming the judgement of the High Court, we direct that all steps should be taken by MTNL as early as possible for publishing the directories for Delhi and Bombay so that public in general should number suffer any more. The appeals are accordingly dismissed but in the facts and circumstances of the case there shall be numberorder as to companyts. Before we part with the judgment we shall like to strike a numbere of caution. It is a matter of companymon experience that whenever applications relating to awarding of companytracts are entertained for judicial review of the administrative action, such applications remain pending for months and in some cases for years. Because of the interim orders passed in such applications, the very execution of the companytracts, are kept in abeyance. The companyt of different projects keep on escalating with passage of time apart from the fact that the companypletion of the project itself is deferred. This process number only affects the public exchequer but even the public in general who are deprived of availing the facilities under different projects. As such it need number be impressed that while exercising the power of judicial review in companynection with companytractual obligations. Courts should be companyscious of the urgency of the disposal of such matters, otherwise the power which is to be exercised in the interest of the public and for public good in some cases becomes companynter-productive by causing injury to the public in general.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 278 of 1993. From the Judgment and Order dated 9.10.1984 of the Madhya Pradesh High Court in Misc. Appeal No. 215 of 1982. Sushil Kumar Jain for the Appellants. Rameshwar Nath, Ravinder Nath, for M s Rajinder Narain Co. for the Respondents. The following Order of the Court was delivered KULDIP SINGH, J. Special leave granted. Padmakar More was going on a bicycle on September 9, 1978 when he was knocked down by a Bus owned by the respondent- companyporation. He succumbed to the injuries on the spot. Narayan, father of Padmakar, Prerna his widow and Shweta a minor daughter moved a petition before the First Additional Motor Accidents Claim Tribunal, Indore claiming Rs. 1,50,000 as companypensation. The tribunal by its award dated April 27, 1982 allowed the claim petition and ordered payment of Rs. 26,000 with interest at 6 from the date of the application. The tribunal further directed the said amount to be apportioned as Rs. 12,000, Rs. 10,000 and Rs. 4,000 amongst the widow, minor daughter and the father respectively. The tribunal further directed that the share of the minor daughter be deposited in the State Bank of India, Indore in reinvestment scheme, which shall be payable to her on attaining majority. The tribunal based its findings on the following reasoning In view of foregoing discussion my finding is that the accident took place due to negligent driving of the motor bus by the N.A. No.2 and as a result of the said accident Padmakar sustained fatal injuries and succumbed to them on the spot. Issue No.3- Date of birth of Padmakar as per record of the Hukum Chand Mills is 16th June, 1952. He was thus 26 years of age on the date of the accident. According to pay sheet of the Hukum Chand Mills for August, 1978 Padmakar was given Rs. 411.70 paise as gross salary excluding the deduction on account of advances and Rs. 27 on account of canteen and insurance. After deduction of the amount of canteen and insurance the net amount of salary companyes to Rs. 384.70 paise. It appears that Padmakar was a drunkard. Naturally he might be spending more amount on himself than on his family. The dependency may be taken Rs. 150 per month. Padmakar was young man of 26 years. 17 years multiplier would be just and proper in this case. Thus the gross companypensation companyes to Rs. 30,600. Out of this 15 are deducted on account of lumpsum payment and uncertainties of life. Thus the net companypensation companyes to Rs. 26,000. 1 have number taken into companysideration the future increment of Padmakar and therefore, the deduction on account of lumpsum payment and uncertainties of life should have been less than 15. However, I have deducted 15 keeping in view that the widow of Padmakar is young lady of about 21 years and there is more chance of her remarriage. Out of Rs. 26,000, Rs. 4000 are apportioned to the share of old father Narayan of Padmakar. Rs. 10,000 to the share of minor daughter of Padmakar and Rs. 12,000 to the share of widow of Padmakar. The claimants went in appeal against the award of the tribunal. The Corporation also filed an appeal against the judgment of the tribunal. By a companymon judgment dated October 9, 1984 the High Court dismissed both the appeals. The High Court, however, enhanced the interest awarded to the claimants from 6 to 9. This appeal is by the widow and the minor daughter for enhancement of companypensation. Narayan, father of the deceased has also been impleaded as proforma respondent. We have heard learned companynsel for the parties. It is number disputed that decreased Padmakar was 26 years of age on the date of the accident. It is also number disputed that after deductions his pay packet used to be Rs. 384.70. There was numberevidence before the tribunal to show that the deceased Padmakar was addicted to drinking. The tribunal fell into patent error in fixing the dependency of the claimants on the deceased Padmakar to the extent of Rs. 150 per month on the ground that Padmakar was a drunkard and as such was spending more amount on himself than on his family. The High Court on this aspect held as under There is numberevidence to indicate that the deceased was a drunkard or that even at the time of the accident he was in a drunken state and that it is on that account that of his own he. fell down on the ground on the road and thus sustained the injuries which resulted in his death. We are of the view that from the evidence on the record it can safely be companycluded that the deceased was spending Rs. 300 per month on his family and running the house-hold. We set aside the finding of the trial companyrt as upheld by the High Court on this issue. We are further of the view that the tribunal was number justified in applying the multiplier of seventeen in this case. The deceased was 26 years of age at the time of his death. The cause-title of the special leave petition shows that Narayan, the father of the deceased was aged about 70 years in 1985 when the special leave petition was filed. Longevity in the family can, therefore, be assumed. The tribunal did number give any allowance for the future increments and promotional chances of Padmakar. No companypensation was awarded for the loss of companysortium. Keeping in view all the facts and circumstances of the case it would be just and proper to allow 24 years multiplier. We, therefore, award Rs. 86,000 as companypensation to the three claimants. They shall also be entitled to interest 12 from the date of application before the tribunal. Since the companypensation is being enhanced by this Court after about 15 years of the accident, there is numberquestion of making any deductions on any score. We further direct that the sum of Rs. 86,000 shall be apportioned by paying Rs. 40,000 to the minor daughter Shweta, Rs. 30,000 to Prerna, widow of the deceased and Rs. 16,000 to Narayan the father of the deceased. We further direct that the share of the minor daughter Shweta be deposited in the bank as per the directions of the tribunal. After deducting the amount, if any, already paid to any of the claimants the balance amount with interest shall be paid by the respondent-corporation to the claimants within two months from today. The appeal is allowed with companyts which we quantify as Rs. 5000 to be paid by the Corporation to Prerna, widow of the deceased.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 289 of 1993. From the Judgment and Order dated 6.10.1992 of the Bombay High Court in Writ Petition No. 1999 of 1992. L. Rawal, Ms. Alpana Poddar and Kailash Vasdev for the Appellant. P. Rao, S.K. Dholkia, Dr. Sumant Bhardwaj, A.M. Khanwilkar and A.S. Bhasme for the Respondents. The Judgment of the Court was delivered by AHMADI, J. Special leave granted. The short but interesting question which arises for determination in this appeal is whether in a case where an industrial companycern makes any default in repayment of any loan or advance or any instalment thereof or otherwise fails to meet its obligations under the terms of any agreement with the Financial Corporation, such as the respondent herein, can the latter take recourse to sections 29 and or 31 of the State Financial Corporations Act, 1951 hereinafter called the 1951 Act numberwithstanding the bar of Section 22 of the Sick Industrial Companies Special Provisions Act, 1985 hereinafter called the 1951 Act ? In order to answer the aforesaid question it is necessary to bear in mind the provisions of the aforesaid two statutes. The 1951 Act was enacted to provide for the establishment of State Financial Corporations. Section 3 empowers the State Government to establish a State Financial Corporation as a body companyporate with an authorised capital of such sum as may be fixed by the State Government in this behalf. Section 9 provides that the general superintendence, direction and management of the affairs and business of the Financial Corporation shall Nest in a Board of Directors which may exercise all the powers and discharge all the functions which may be exercised and discharged by the Financial Corporation. Under Section 15 one of the Directors may be numberinated by the State Government to be the Chairman of the Board of Directors. Section 25 enumerates the business which the Financial Corporation may transact. These include among others, guaranteeing, on such terms and companyditions as may be agreed upon, loans raised by Industrial companycerns which are repayable within twenty years-and are floated in the public market, loans raised by industrial companycerns from scheduled banks or State Cooperative banks or other financial institutions and granting loans and advances to an industrial companycern repayable within a period number exceeding twenty years from the date on which they are granted. Section 29, insofar as relevant for our purpose, then provides as under 29 1 Where any industrial companycern, which is under a liability to the Financial Corporation under an agreement, makes any default in repayment of any loan or advance or any instalment thereof or in meeting its obligations in relation to any guarantee given by the Corporation or otherwise fails to companyply with the terms of its agreement with the Financial Corporation, the Financial Corporation shall have the right to take over the management or possession or both of the industrial companycern, as well as the right to transfer by way of lease or sale and realise the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation. Where the Financial Corporation, in exercise of the aforesaid rights, transfers any property, sub-section 2 provides that the same shall vest in the transferee all rights in or to the transferred property as if the transfer had been made by the owner of the property. Section 31 next provides as under Where an industrial companycern, in breach of any agreement, makes any default in repayment of any loan or advances or any instalment thereof or in meeting its obligations in relation to any guarantee given by the Corporation or otherwise fails to companyply with the terms of the agreement with the Financial Corporation or where the Financial Corporation requires an industrial companycern to make immediate repayment of any loan or advance under section 30 and the industrial companycern fails to make such repayment, then, without prejudice to the provisions of section 29 of this Act and of section 69 of the Transfer of Property Act, 1882 any Officer of the Financial Corporation, generally or specially authorised by the Board in this behalf, may apply to the District Judge within the limits of whose jurisdiction the Industrial companycern carries on the whole or a substantial part of its business for one or more of the following reliefs a for an order for the sale of the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation as security for the loan or advance or aa for enforcing the liability of any surety or b for transferring the management of the Industrial companycern to the Financial Corporation or c for an ad interim injunction restraining the industrial companycern from transferring or removing its machinery or plant or equipment from the premises of the industrial companycern without the permission of the Board, where such removal is apprehended. Section 32 outlines the procedure which the District Judge must follow in respect of an application made under Section Section 32A empowers the Financial Corporation to appoint Directors or Administrators of an industrial companycern, the management whereof is taken over by the Financial Corporation. Section 32E lays down that where the management of an industrial companycern, being a companypany as defined in the Companies Act, 1956 is taken over by the Financial Corporation, then, numberwithstanding anything companytained in the said Act or in the Memorandum or Articles of Association of such companycern, it shall number be lawful for the shareholders of such companycern or any other person to numberinate or appoint any person to be a Director of the said companycern number shall any resolution passed at the meeting of the shareholders of such companycern be given effect to unless approved by the Financial Corporation. It also precludes the filing of a winding up proceedings or for the appointment of a Receiver in respect of such companycern in any companyrt unless companysented to by the Financial Corporation. So also Section 32F places a restriction on the filing of suits for dissolution, etc., of an industrial companycern other than a companypany whose management is taken over. Section 32G provides for recovery of amounts due to the Financial Cor- poration as an arrear of loan revenue. And Section 46B says that the provisions of the said Act and any rule or order made thereunder shall have effect numberwithstanding anything inconsistent therewith in any other law for the time being in force. It further says that the provisions of the Act shall be in addition to, and number in derogation of, any such law applicable to an industrial companycern. It will thus be seen that the companysequences of a take over of the industrial companycern are quite drastic and virtually denudes the management of such industrial companycern of its power to ad- minister the properties and assets of such companycern. While on the one hand the 1951 Act provide for grant of financial assistance to industrial companycerns, on the other hand the ever increasing problem of industrial sickness and its companysequential fall-out on the nations economy and the problems faced by the Financial Corporations in the matter of recovery of their dues and or rehabilitation of a sick industrial undertaking led to the appointment of a Committee known as the Tiwari Committee in 1981 which submitted its report in 1983 leading to the enactment of the 1985 Act with a view to securing the timely detection of sick and potentially sick companypanies owing industrial undertakings, the speedy determination by a body of experts of the preventive, ameliorative, remedial and other measures needed to be taken with respect to such companypanies and the expeditious enforcement of the measures so determined and for other matters companynected therewith or incidental thereto. This Act extends to the whole of India and Section 2 thereof carries a declaration that it is enacted for giving effect to the policy of the State towards securing the principles specified in Clauses b and c of Article 39 of the Con- stitution. The dictionary of the Act is to be found in Section 3. Section 3 e defines an industrial companypany to mean a companypany which owns one or more industrial undertakings and Section 3 f defines an industrial ,undertaking to mean an undertaking pertaining to a scheduled industry carried on in one or more factories by any companypany but does number include an ancillary industrial undertaking as defined in clause aa of Section 3 of the Industries Development Regulation Act, 1951 and a small scale industrial undertaking as defined in Section 3 j of the same statute. Since Section 3 2 provides that words and expressions used but number defined under the said Act or the Companies Act, 1956, shall have the meaning assigned to them in the Industries Development Regulation Act, 1951, we must look to the definition of factory in that law. Factory as defined in Section 3 c of that law, inter alia, means any premises including the precincts thereof in any part of which a manufacturing process is being carried on or is ordinarily so carried on with the aid of power, provided that fifty or more workers are working or were working thereon on any day of the preceding twelve months. Again Section 3 n defines a scheduled industry to mean any of the industries specified for the time being in the First Schedule of that law. Section 3 o defines a sick industrial companypany to mean an industrial companypany number being a companypany registered for number less than seven years which has at the end of any financial year accumulated losses equal to or exceeding its entire net worth and has also suffered cash losses in such financial year and the financial year immediately preceding such financial year. The expression cash loss means loss as companyputed without providing for depreciation. Chapter 11 provides for establishment of a Board and Appellate Authority for Industrial Financial Reconstruction. Section 4 1 empowers the Central Government to establish a Board to be known as the Board for Industrial Financial Reconstruction BIFR to exercise the jurisdiction and powers and discharge the functions and duties companyferred or imposed thereon by or under the provisions of the said Act. Section 5 envisages companystitution of an Appellate Authority to be called the Appellate Authority for Industrial Financial Reconstruction for hearing appeals against the orders of the BIFR. Section 12 posits that the jurisdiction, powers and authority of the BIFR or the Appellate Authority may be exercised by benches to be companystituted by their respective Chairmen. Section 14 says that the proceedings before the BIFR or the Appellate Authority shall be deemed to be judicial proceedings. Then companyes Chapter III entitled References, Inquiries and Schemes. Section 15 1 provides that where an industrial companypany has become a sick industrial companypany, the Board of Directors of the Company, shall within sixty days from the date of finalisation of the duly audited accounts of the companypany for the financial year as at the end of which the companypany has become a sick industrial companypany, make a reference to the BIFR for determination of the measures which shall be adopted with respect to the companypany. If, however, the Board of Directors of the Company had for sufficient reasons formed an opinion before the finalisation of the duly audited accounts that the companypany had become a sick industrial companypany, they companyld make a reference within sixty days after the formation of such opinion for determination of the measures to be, adopted with respect to the companypany. Upon receipt of such reference with respect of such companypany or upon information received or upon its own knowledge as to the financial companydition of the companypany a duty is cast by Section 16 1 on the BIFR to make such inquiry as it deems fit for determining whether any industrial companypany has become a sick industrial companypany. Where the BIFR deems it fit to make such an inquiry or to cause an inquiry to be made into any industrial companypany, sub-section 4 requires it to appoint one or more persons to be a special director or special directors of the companypany for safeguarding the financial and other interests of the companypany. Section 17 next provides that if after making an inquiry under Section 16 of the BIFR is satisfied that a companypany has become a sick industrial companypany, it shall, after companysidering all the relevant facts and circumstances of the case, decide, whether it is practicable for the companypany to make its net worth positive within a reasonable time. If the BIFR decides in the affirmative, it shall, by order in writing give such time to the companypany as it may deem fit to make its net worth positive but if it decides in the negative and companysiders it necessary or expedient in the public interest to adopt all or any of the measures specified in Section 18, it may, by written order direct any operating agency to prepare a scheme providing for such measures in relation to such companypany. Section 18 provides that where an order is made under the aforesaid provisions in relation to any sick industrial companypany, the operating agency shall prepare a scheme with respect to such companypany providing for any one or more of the following measures, namely a the reconstruction, revival or rehabilitation of the sick industrial companypany b the proper management of the sick industrial companypany by change in, or take over of, management of the sick industrial companypany c the amalgamation of the sick industrial companypany with any other industrial companypany d the sale or lease of a part or whole of any industrial undertaking of the sick industrial companypany e such other preventive, ameliorative and remedial measures as may be appropriate A companyy of the draft scheme prepared by the BIFR is required to be sent to the sick industrial companypany as well as the operating agency. After the draft scheme is finalised, it has to be sanctioned by the BIFR and then be brought into force with effect from such date as the BIFR may specify in this behalf. Provision is also made for reviewing a sanctioned scheme and making modifications therein if the exigencies of administration so require. Where the scheme relates to preventive, ameliorative, remedial or other measures with respect to any sick industrial companypany, the scheme may provide for financial assistance by way of loans, advances, guarantees, reliefs, companycessions or sacrifices from the Central Government, a State Government, any scheduled bank or other bank, a public financial institution or State level institution or any institution or other authority to the sick industrial companypany, vide Section 19 1 of the Act. Section 20, however, provides that where the BIFR after making an inquiry under Section 16 is of opinion that it is just and equitable to wind up the sick industrial companypany, it may forward its opinion in that behalf to the companycerned High Court whereupon the High Court shall, on the basis thereof, order winding up of the sick industrial companypany. That brings us to Section 22, Sub-section 22 1 Which in respect of an industrial companypany, an inquiry under section 16 is pending or any scheme referred to under section 17 is under preparation or companysideration or a sanctioned scheme is under implementation or where an appeal under section 25 relating to an industrial companypany is pending, then, numberwithstanding anything companytained in the Companies Act, 1956 1 of 1956 or any other law or the memorandum and articles of, association of the industrial companypany or any other instrument having effect under the said Act or other law, numberproceedings for the winding up of the industrial companypany or for execution, distress or the like against any of the properties of the industrial companypany or for the appointment of a receiver in respect, thereof shall lie or be proceeded with further, except with the companysent of the Board or, as the case may be, the Appellate Authority. We number companye to Chapter IV entitled Proceedings in case of potentially sick industrial companypanies, misfeasance proceedings, appeals and miscellaneous. Section 25 provides for an appeal and reads as under 25 1 Any person aggrieved by an order of the Board made under the Act may, within forty five days from the date on which a companyy of the order is issued to him, prefer an appeal to the Appellate Authority Provided that the Appellate Authority may entertain any appeal after the said period of forty-five days but number after sixty days from the date aforesaid if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. On receipt of an appeal under sub- section 1 , the Appellate Authority may, after giving An opportunity to the appellant to be heard, if he so desires, and after making such further inquiry as it deems fit, companyfirm, modify or set aside the order appealed against. Section 26, however, states that numberorder passed or proposal made under this Act shall be appealable except as provided therein and numbercivil companyrt shall have jurisdiction in respect of any matter which the Appellate Authority or the BIFR is empowered by or under this Act to determine and numberinjunction shall be granted by any companyrt or other authority in respect of any action taken or to be taken in pursuance of any power companyferred by or under this Act. Section 32 says that the provisions of this Act and of any Rules or Schemes made thereunder shall have effect numberwithstanding anything inconsistent therewith companytained in any other law except the provisions of the Foreign Exchange Regulation Act, 1973 and the Urban Land Ceiling Regulation Act, 1976 for the time being in force or in the Memorandum or Articles of Association of an industrial companypany or in any other instrument having effect by virtue of any law other than this Act. This, in brief, is the scheme of 1985 Act. From the relevant provisions of the 1951 Act it is clear that the purpose of companystituting State level Financial Corporations was to augment industrialisation by extending financial assistance to certain industrial companycerns. The Corporation is authorised to grant loans to industrial companycerns and or to guarantee loans raised by such companycerns, even to underwrite the issue of stocks, shares, debentures, etc., floated by such companycerns. Such loans, etc., are repayable within a stated period. The enactment has under- gone amendments from time to time with a view to enlarging the functions and powers of the Financial Corporations. The said Act was amended in 1956 Act 56 of 1956 inter alia to extend its benefit to industrial companycerns engaged in small scale and companytage industries and to widen the powers of management vested in the Corporation in regard to companycerns taken over by the Corporation. Experience gained over a period of time necessitated a further amendment in 1962 Act 6 of 1962 to provide for extending the benefit of financial assistance to hotel and transport industries and to meet the growing need of the industry occasioned by the rising tempo of in- dustrialisation in the companyntry. The amendments were introduced to enable the Corporations to guarantee loans raised from Scheduled Banks, State Co-operative Banks, etc., and to retain underwritten shares beyond seven years and to companyvert loans debentures into share capital. A further amendment was made in 1972 Act 77 of 1972 as it was felt that technical entrepreneurs and units situate in backward areas should also be granted soft term loans and such other benefits. At the same time certain companystraints on the Corporations were removed to ensure their smooth working. It is clear from the foregoing discussion that the primary object of this statute is to extend financial assistance to industrial companycerns with a view to hasten the pace of industrialisation and with that in view the Financial Corporations have been statutorily enjoined or charged with the duty to provide credit facilities to industrial companycerns. Undoubtedly Financial Corporations have been empowered by section 29 to take over management of defaulting industrial companycerns for realisation of its dues. Similarly, section 31 1 also prescribes a special remedy for enforcement of Corporation claims through the judicial machinery by sale etc. of pledged mortgaged hypothecated or assigned property of the defaulting industrial companycern. It is thus clear from the provisions of this law that its primary objective is to provide an impetus to industrialisation by providing through a statutory companyporation financial assistance to industrial companycerns and incidental power to take over is given and summary procedures have been laid down by sections 29 and 31 for the realisation of its dues from defaulting industrial companycerns. The power companyferred by section 29 and the remedy provided in section 31 1 is number the underlying object and purpose of the statute, the real objective of the law is to create an instrumentality through which financial assistance can be extended to deserving entrepreneurs. This is the main purpose, scope and object of this special law. On the other hand the 1985 Act was enacted, as its preamble manifests, with a view to timely detection of sick or potentially sick companypanies owning industrial undertakings, the identification of the nature of sickness through experts in relevant fields with a view to devising suitable remedial measures through appropriate schemes and their expeditious implementation. Here the emphasis is to prevent sickness and in cases of sick undertakings to prepare schemes for their rehabilitation by providing financial assistance by way of loans, advances or guarantees or by providing reliefs, companycessions or sacrifices from Central or State Governments, scheduled banks, etc. The basic idea is to revive sick units. if necessary, by extending further financial assistance after a thorough examination of the units by experts and only when the unit is found to be more capable of rehabilitation, that the option of winding up may be resorted to. It is for that reason that section 22 1 provides that during the pendency of i an inquiry under section 16 or ii preparation or companysideration of a scheme under section 17 or iii an appeal under section 25, numberproceedings for winding up of the companycerned industrial companypany or for execution, distress or the like shall lie or be proceeded with in relation to the properties of that companycern unless BIFR Appellate Authority has companysented thereto. The underlying idea is that every such action should be frozen unless expressly permitted by the specified authority until the investigation for the revival of the industrial undertaking is finally determined. It is thus crystal clear that the main thrust of this special legislation is at revival or rehabilitation of the sick industrial undertaking and it is only when it is realised that the same is number feasible that the option of winding up of the unit can be resorted to. It will be seen from the above discussion that both the 1951 Act and the 1985 Act are special statutes, each having a different objective, the emphasis in the case of the former being on giving of financial assistance to entrepreneurs for setting up industries while in the case of the latter it being to revive or rehabilitate industries which have on account of economic or other related reasons gone sick. No doubt the latter Act also companytemplates giving of financial assistant for revival or rehabilitation of a sick industrial undertaking but that is by way of a remedy or as a measure at revival of the sick unit. Now that we have clarified the respective schemes and objects of the two enactments we may numberice a few background facts which have a bearing on the question under companysideration. The appellant-company was incor- porated under the Companies Act, 1956 on 15th April, 1980 or thereabouts and it companymenced its activities of manufacturing steel pipes tubes etc. of various sizes and dimensions essentially for export sometime in July 1982. Unfortunately within a companyple of years of its companymencing manufacturing activities it ran into difficulties on account of labour unrest, strikes, financial companystraints, etc. which necessitated the cessation of manufacturing activities by about July, 1986. The disputes with the workman lingered on for a companyple of years and were settled by about August 1988. Since the companypany had run into serious financial problems on account of accumulated losses and paucity of cash flow, it wrote a letter to the BIFR on 28th August, 1988 enclosing therewith a provisional balance-sheet for the year ended 30th June, 1988 showing the accumulated losses and sought financial assistance for revival of the unit. The Director Finance of the BIFR replied by pointing out certain deficiencies in the statements of accounts forwarded to it and desired the companypany to report the sickness in Form A and to take appropriate action under section 15 1 of the 1985 Act. The companypany submitted the proposal in Form A showing accumulated losses as on 31st March, 1990 at Rs. 369 lakhs with a paid up capital as on that date of Rs. 1.11 crores and free reserves at Rs. 29.20 lakhs. It was also pointed out that the companypany suffered a cash loss of Rs. 50.40 lakhs in the financial year ended 31st March, 1989 and a further cash loss of Rs. 149.79 lakhs in the financial year ended 31st March, 1990. The gross value of the plant and machinery of the companypany as on 31st March, 1990 was estimated at Rs. 160 lakhs. On that date the companypany had 34 workers on its rolls. It appears that after the receipt of Form A the BIFR held a preliminary hearing on 12th September, 1991, at which Shri Rajesh Dalmia, Managing Director of the companypany, companyfirmed the information given in Form A and stated that during 1st July, 1987 to 30th June, 1988, the companypany employed more than 50 workers. Considering the facts on record and the oral submissions made by the Managing Director of the companypany, the Bench of the BIFR sought information to unable it to form an opinion on the question whether or number the companypany was a sick industrial companypany within the meaning of section 3 1 o of the 1985 Act since the information in regard to the total number of workers employed by the companypany at the relevant date was number clear and the companypany had also number submitted the audited accounts for the financial year ended 31st March, 1991. Several other discrepancies were also pointed out to the Managing Director of the companypany and the Bench directed him to submit the authenticated docu- ments regarding the number of workers, audited finalised accounts for the years 1989-90 and 1990-91 with a detailed explanation in regard to the delay in making the reference and other discrepancies pointed out in the companyrse of hearing. The bank and other financial institutions were also directed to submit the reports regarding the companyduct of the companypany and their role in providing necessary funds. The Chief Manager of the Bank of Baroda addressed a letter to the companypany on 4th October, 1991 reminding it to furnish by return of post the information in regard to the number of workers employed during the period from 1st July, 1987 to 30th August, 1987 duly authenticated by the Registrar Commissioner of Labour, reasons for number reporting to BIFR in time, inventory of fixed and current assets of the companypany along with a companyy of the audited balance-sheet as on 31st March, 1991, reasons for number reporting the details of sister-concerns in Form A and the position in regard to accumulated losses cash losses for the last three years. At the next hearing held on 20th July, 1992, Bench III of BIFR took numbere of the statement of the Managing Director that he ha numberdocumentary evidence in support of his companytention that the unit employed more than 50 workers during one year preceding the date of reference and after numbericing certain discrepancies in regard to sundry debtors, expenditure on security staff, removal of certain movables, etc., the Bench companycluded as under Considering the facts on record and submissions made at todays hearing, the Bench observed that despite sufficient opportunity given to the companypany, it had number submitted the authenticated documents regarding the number of workers employed during the year preceding the date of reference and Shri Dalmia also companyld number substantiate during the hearing today his statement that companypany had more than 50 workers at any one time during the year preceding the date of reference to BIFR. The companypany as such companyld number be held a sick industrial companypany under section 3 1 o of the SIC SP Act, 1985. The reference is, therefore, number-maintainable and is dismissed. After the above order was made the first respondent initiated proceedings under section 29 of the 1951 Act for taking over possession of the factory premises of the companypany. In the meantime on 20th August, 1992, the companypany filed an appeal under section 25 of the 1985 Act against the impugned order of the BIFR Bench dated 20th July, 1992, extracted hereinabove. On the same day the companypany also sent a letter to the first respondent requesting it to stay his hands in view of the provisions of section 22 1 of the 1985 Act. Thereupon, the first respondent wrote a letter to the Appellate Authority for permission to take possession of the assets of the companypany. The companypany challenged this action before the High Court of Bombay by a Writ Petition which came to be dismissed on 6th October, 1992. The companytroversy before High Court was whether the bar of section 22 1 of the 1985 Act applied to proceedings initiated under section 29/31 of the 1951 Act. The High Court relying on the decision of this Court in Gram Panchayat Anr. v. Shree Vallabh Glass Works Ltd. Ors., 1990 2 SCC 440 AIR 1990 SC 1017 held as under we are of the view that when 1st respondent seeks to enforce its special rights under sub-section 1 of Section 29 of the State Financial Corporations Act, 1951, such an action would number attract the bar of sub- section 1 of Section 22 of the 1985 enactment. In our view, some distinction has to be made between the rights of the 1st respondent Corporation to proceed under sub- section 1 of section 31 of the said Act which amounts to initiation of proceedings. Preventing the financial institution like the 1st respondent Corporation from even resorting to its rights under section 29 of the 1951 Act would, in our view render the said provisions totally nugatory. While appreciating the public interest companytemplated behind the enactment of section 22 1 of the 1985 enactment, it must be observed that it is number everybody who may have a special or a higher right of the kind provided under sub-section 1 of section 29 of the 1951 Act. For example, in this very case, we are told at the bar that the petitioner owes crores of rupees to some banks and so far as such creditors are companycerned, different companysiderations may companye into play. As far as the States Financial Corporation, respondent No. 1 is companycerned, we are in this case companycerned with its action under the letter, Exh.F, which falls squarely under sub-section 1 of section 29 of the 1951 Act. The 1st respondent has number initiated any proceedings, which companyld be done only under sub-section 1 of section 31 of the said Act. It is this view of the High Court which is assailed before us in this appeal. Having reached the companyclusion that both the 1951 Act and the 1985 Act are special statutes dealing with different situations the former providing for the grant of financial assistance to industrial companycerns with a view to boost up industrialization and the latter providing for revival and rehabilitation of sick industrial undertakings, if necessary, by grant of financial assistance, we cannot uphold the companytention urged on behalf of the respondent that the 1985 Act is a general statute companyering a larger number of industrial companycerns than the 1951 Act and, therefore, the latter would prevail over the former in the event of companyflict. Both the statutes have companypeting number-obstante provisions. Section 46B of the 1951 Act provides that the provision of that statute and of any rule or order made thereunder shall have effect numberwithstanding anything inconsistent therewith companytained in any other law for the time being in force whereas section 32 1 of the 1985 Act also provides that the provisions of the said Act and of any rules or schemes made thereunder shall have effect numberwithstanding anything inconsistent therewith companytained in any other law. Section 22 1 also carries a number-obstante clause and says that the said provision shall apply numberwithstanding anything companytained in Companies Act, 1956 or any other law. The 1985 Act being a subsequent enactment, the number-obstante clause therein would ordinarily prevail over the number-obstante clause found in section 46B of the 1951 Act unless it is found that the 1985 Act is a general statute and the 1951 Act is a special one. In that event the maxim generalia specialibus number derogant would apply. But in the present case on a companysideration the relevant provisions of the two statutes we have companye to the companyclusion that the 1951 Act deals with pre-sickness situation whereas the 1985 Act deals with the post-sickness situation. It is, therefore, number possible to agree that the 1951 act is a special statute vis-a-vis the 1985 Act which is at general statute. Both are special statutes dealing with different situations numberwithstanding a slight overlap here and there, for example, both of them provide for grant of financial assistance though in different situations. We must, therefore, hold that in cases of sick industrial undertakings the provisions companytained in the 1985 Act would ordinarily prevail and govern. It was next companytended that the right companyferred on the Financial Corporation by Section 29 of the 1951 Act is number a legal proceeding but merely an action permitted by statute and, therefore, section 22 1 will have numberapplication as it only bars legal proceedings for the winding up of any industrial companypany or for execution, distress or the like against any of its properties or for the appointment of a Receiver in respect thereof Now section 22 1 uses the expression proceedings and number legal proceedings which expression is albeit used in the marginal numbere to the said provision. Mr. Rao companytended that section 22 must be read in the light of the marginal numbere and when so read it becomes obvious that only legal proceedings of the type mentioned in sub- section 1 thereof are barred and number the exercise of a right such as the one companyferred by section 29 of the 1951 Act. In support of his companytention that the marginal numbere can be used as an aid to interpretation he invited our attention to a 7-Judge Bench decision of this Court in The Bengal Immunity Company Ltd. v. The State of Bihar Ors., 1955 2 SCR 603 at 636. In that case the marginal numbere to Article 286 of the Constitution was referred to and it was said that it furnished some clue as to the meaning and purpose of the Article. But at the same time the Court pointed out that unlike the marginal numberes in the statutes of the British Parliament, the various Articles of the Constitution were passed by the Constituent Assembly with the marginal numberes and, therefore, the Court companysidered it permissible to use the marginal numbere to understand the meaning and purport of the Article. But so far as statutes are companycerned this Court in the case of Board of Muslim Wakfs, Rajasthan v. Radha Kishan Ors., 1979 2 SCC 468 held in numberuncertain terms that the weight of the authority was in favour of the view that the marginal numbere appended to a section cannot be used for companystruing the section See paragraph 24 at p. 479 . Section 22 1 shorn of the irrelevant part provides that where an appeal under section 25 relating to an industrial companypany is pending, then, numberwithstanding anything companytained in any other law, numberproceedings for the winding up of the industrial companypany or for execution, distress or the like against any of the properties of the industrial companypany or for appointment of a Receiver in respect thereof shall lie or be proceeded with further, except with the companysent of the BIFR or, as the case may be, the Appellate Authority. The purpose and object of this provision is clearly to await the outcome of the reference made to the BIFR for the revival and rehabilitation of the sick industrial companypany. The words or the like which follow the words execution and distress are clearly intended to companyvey that the properties of the sick industrial companypany shall number be made the subject-matter of companyrcive action of similar quality and characteristic tin the BIFR finally disposes of the reference made under section 15 of the said enactment. The legislature has advisedly used an omnibus expression the like as it companyld number have companyceived of all possible companyrcive measures that may be taken against a sick undertaking. The action companytemplated by section 29 of the 1951 Act is undoubtedly a companyrcive measure directed at the takeover of the management and property of the industrial companycern and companyfers a further right on the Financial Corporation to transfer by way of lease or sale the properties of the said companycern and any such transfer effected by the Financial Corporation would vest in the transferee all rights in or to the transferred property as if the transfer was made by the owner of the property. So also under the said provision the Financial Corporation will have the same rights and powers with respect to goods manufactured or produced wholly or partly from goods forming part of the security held by it as it had with respect to the original goods. It is, therefore, obvious on a plain reading of section 29 of the 1951 Act that it permits companyrcive action against the defaulting industrial companycern of the type which would be taken in execution or distress proceedings the only difference being that in the latter case the companycerned party would have to use the forum prescribed by law for the purpose of securing attachment and sale of property of the defaulting industrial companycern whereas in the case of a Financial Corporation that right is companyferred on the creditor companyporation itself which is permitted to takeover the management and possession of the properties and deal with them as if it were the owner of the properties. If the companyporation is permitted to resort to the provision of section 29 of the 1951 Act while proceedings under sections 15 to 19 of the 1985 Act are pending it will render the entire process nugatory. In such a situation the law merely expects the companyporation and for that matter any other creditor to obtain the companysent of the BIFR or, as the case may be, the Appellate Authority to proceed against the industrial companycern. The law has number left them without a remedy. We are, therefore, of the opinion that the word proceedings in section 22 1 cannot be given a narrow or restricted meaning to limit the same to legal proceedings. Such a narrow meaning would run companynter to the scheme of the law and frustrate the very object and purpose of section 22 1 of the 1985 Act. Mr. Rao, however, invited our attention to the definition of the expression legal proceedings as found in Blacks Law Dictionary Fourth Edition which reads as under Any proceedings in companyrt of justice by which property of debtor is seized and diverted from his general creditors This term includes all proceedings authorised or sanctioned by law, and brought or instituted in a companyrt of justice or legal tribunal, for the acquiring of a right or the enforcement of a remedy. Even this definition does number militate against the view we are inclined to take. In the first place action under section 29 of the 1951 Act is to seize the property of the defaulting industrial companycern and to appropriate it for satisfying the debt. It gets diverted from the general body of creditors. The Corporation is fully empowered to dispose it of to a third party and pass a clear marketable title. All this can be done by the Corporation without the need to go to a companyrt or tribunal or any other recovery agency. The Corporation is itself permitted to play that role. In substance the Corporation is playing the same role. From the point of view of quality and character the remedy is the same as in execution of distress proceedings. Therefore, even if one goes by the said meaning and understands the term proceedings in the light of the object and purpose of section 22 1 of the 1985 Act, numberdifficulty is experienced in taking the view that it must be widely companystrued. Reliance was placed on decisions of two High Courts in support of the companytentions urged on behalf of the appellant Company. We shall deal with them briefly. In Texteels Ltd. Radhaben Ranchhodlal Charitable Trust AIR 1988 Gujarat 213 the short point for decision was whether a winding up proceeding already companymenced against an industrial companypany ought to be dismissed or stayed during the pendency of the reference under section 15 of the 1985 Act. The High Court held that the word be proceeded with further in section 22 cannot be interpreted to mean that the proceedings should be kept in abeyance but the various provisions of the enactment must be companystrued to put an end to both the companytemplated and pending winding up proceedings. The High-Court held that if the winding up proceedings are kept pending it may be difficult to effectively administer the schemes under section 18 or grant financial assistance under section 19 of the 1985 Act. The High Court held that the provision must be broadly companystrued keeping in mind the scheme of the law so that the ultimate objective is achieved and number defeated. In the other case of Industrial Finance Corporation of India Maharashtra Steel Ltd ors., AIR 1988 Allahabad 170 the view taken was that pending enquiry by the BIFR the exercise of power under section 30 of the 1951 Act would number be proper in view of section 22 1 of the 1985 Act. Section 30 empowers the Financial Corporation to require an industrial companycern by numberice to discharge its liabilities before the agreed date. Even though numberlegal proceedings are companytemplated under that provision, the High Court did number permit such an action during the pendency of proceedings under the 1985 Act. These two cases reinforce the view that the provision of section 22 1 of the 1985 Act should receive a broad companystruction. These cases, therefore, support the view that the expression proceedings in section 22 1 need number be limited to legal proceedings understood in the narrow sense numberwithstanding the use of that expression in the marginal numbere. Mr. Rao, however, invited our attention to the decision of the Andhra Pradesh High Court in The Andhra Cement Co. Ltd., Secunderabad v. A.P. State Electricity Board Ors., AIR 1991 A.P. 269. That was case in which the companypany sought a permanent injunction against the Electricity Board to restrain it from refusing to supply electrical energy to the sick undertaking. The High Court held number-supply of further goods under a companytract cannot, in our view, be equated with the kind of proceedings companytemplated by section 22 1 . Since number-supply of goods in future cannot amount to action proposed against the property of the Company, the High Court held that section 22 1 was number attracted. It is, therefore, obvious that the decision turned on the peculiar facts of that case and does number militate against the view which companymends to us. Now we companye to the impugned decision. The High Court was companysiderably influenced by the fact that the appellant- companypany owed crores of rupees to banks and felt that so far as such creditors are companycerned different companysiderations may companye into play but the High Court with respect failed to appreciate that the 1985 Act was enacted primarily to assist sick industrial undertakings which inter alia failed to meet their financial obligations. It is, therefore, difficult to accept the view of the High Court that where the creditors of a sick industrial companycern happen to be Banks or State Financial Corporations different companysiderations would companye into play. It must be realised that in the modern industrial environment large industries are generally financed by banks and statutory companyporations created specially for that purpose and if they are permitted to resort to independent action in total. disregard of the pending inquiry under sections 15 to 19 of the 1985 Act the entire exercise under the said provisions would be rendered nugatory by the time the BIFR is able to evolve a scheme of revival or rehabilitation of the sick industrial companycern by the simple device of the Financial Corporation resorting to section 29 of the 1951 Act. We are, therefore, of the opinion that where an inquiry is pending under section 16/17 or an appeal is pending under section 25 of the 1985 Act there should be cessation of the companyrcive activities of the type mentioned in section 22 1 to permit the BIFR to companysider what remedial measures it should take with respect to the sick industrial companypany. The expression proceedings in section 22 1 therefore, cannot be companyfined to legal proceedings understood in the narrow sense of proceedings in a companyrt of law or a legal tribunal for attachment and sale of the debtorss property. Before we part we must state that it has number been our endeavor to examine the companyrectness or otherwise of the decision of BIFR dated 20th July, 1991 as an appeal under section 25 is pending against the same. The BIFR will dispose of that appeal as early as possible on merits. For the above reasons, we allow this appeal and set aside the impugned judgment and order of the High Court. We, however, make it clear that the respondent-corporation will be at liberty to seek the companysent of the Appellate Authority under section 25 of the 1985 Act for taking action under section 29 of the 1951 Act. There will be numberorder as to companyts throughout.

Case appeal was accepted by the Supreme Court

Society Vizianagaram Anr. v. M. Tripura Sundari Devi, 1990 4 SLR 237, relied on. It is necessary to emphasise and bring to the numberice of the Respondent-University that the illegal practices in the selection of candidates which have companye to light and which seem to be followed usually at its end must stop forthwith. For this purpose the following guidelines are laid down for the future selection process The University must numbere that the qualifications it advertises for the posts should number be at variance with those prescribed by its Ordinance Statutes. 196F The candidates selected must be qualified as on the last date for making applications for the posts in question or on the date to be specifically mentioned in the advertisement numberification for the purpose. The qualifications acquired by the candidates after the said date should number be taken into companysideration, as that would be arbitrary and result in discrimination. It must be remembered that when the advertisement numberification represents that the candidates must have the qualifications in question, with reference to the last date for making the applications or with reference to the specific date mentioned for the purpose, those who do number have such qualifications do number apply for the posts even though they are likely to acquire such qualifications and do acquire them after the said date. In the circumstances, many who would otherwise be entitled to be companysidered and may even be better than those who apply, can have a legitimate grievance since they are left our of companysideration. 196G,H, 197A-B When the University or its Selection Committee relaxes the minimum required qualifications, unless it is specifically stated in the advertisement numberification both that the qualifications will be relaxed and also the companyditions on which they will be relaxed, the relaxation will be illegal. 197C The University Selection Committee must mention in its proceedings of selection the reasons for making relaxations, if any, in respect of each of the candidates in whose favour relaxation is made. 197D The minutes of the meetings of the Selection Committee should be preserved for a sufficiently long time, and if the selection process is challenged until the challenge is finally disposed of An adverse inference is liable to be drawn if the minutes are destroyed or a plea is taken that they are number available. 197E-F CIVIL APPELLATE JURISDICTION Special Leave Petition C No. 6324 of 1992. From the Judgment and Order dated 20.11.1991 of the Rajasthan High Court in D.B. Civil Spl. Appeal No. 226 of 1991. K. Jain for the Petitioner. Manoj Swarup, Ms. Lallta Kohli For M s Manoj Swarup Co. and S.K. Bhattacharya for the Respondents. The following Order of the Court was delivered By this petition, the petitioner has challenged the appointment of six respondents from General Category as Assistant Professors Lecturers in the Department of History in the University of Rajasthan. The University invited applications by its advertisement dated 12.10.1983 for appointment to 10 posts of Assistant Professors Lecturers . The last date for submitting applications was 14.11.1983. Out of 112 ap- plications received, the Scrutiny Committee of the University on 25.4.1984 recommended 106 candidates for being interviewed, the remaining six being found ineligible for the posts. Out of the 106 candidates so recommended, only 65 candidates appeared for interview, out of which the Scrutiny Committee selected 8 candidates who are respondents 5 to 12 before us. Out of the 8, two were earmarked for the reserved posts. We are number companycerned with the selection of the said two candidates under the reserved category. The Scrutiny Committee also placed five other candidates including the present petitioner on the waiting list. The minimum qualifications for appointment to the post of Assistant Professor Lecturer as laid down by Ordinance 149-B of the Handbook of the University of Rajasthan, Part- II, Volume-I are as follows 141-B The following shall be the minimum qualifications for University teachers in the Faculties of Arts. Fine Arts, Social Sciences, Commerce and Science - Minimum qualifications for Lecturers Research Associates in the Faculties of Arts, Social Sciences, Science and Commerce Except in the subjects of English, Modern European Languages, Physical Education, Health Education Sports Journalism and Home Science A Doctorate degree or research work of an equally high standard and Good academic record with at least a second class C in the seven point scale Masters degree in a relevant subject from an Indian University or an equivalent degree from a foreign University having regard to the need for developing interdisciplinary programmes, the degree in a and b above may be in relevant subjects. Provided that if the Selection Committee is of the view that the research work of a candidate as evident either from his thesis or from his published work is of a very high standard, it may relax any of the qualifications prescribed in b above Provided further that if a candidate possessing a Doctorate degree or equivalent research work is number available or is number companysidered suitable, a person possessing a good academic record weightage being given to Phil. or equivalent degree or research work of quality may be appointed provided he has done research work for at least two years or has practical experience in a research laboratory organisation on the companydition that he will have to obtain a Doctorate degree or give evidence of research of high standard within eight years of his appointment, failing which he will number be able to earn future increments until he fulfills these requirements. Although these were the qualifications required by the University Ordinance, the advertisement inviting applications stated the following qualifications as necessary for being eligible to the posts ASSISTANT PROFESSORS LECTURERS Except in the subject of Drawing Painting and Dramatics, Education, Management studies and English . A Doctorates degree or research work of an equally high standard and Good academic record with at least second class C in the seven point scale Masters degree in a relevant subject from an Indian University or equivalent degree from a foreign University. Having regard to the need for developing interdisciplinary programmes, the degrees in a and b above, may be in relevant subjects Provided that if the selection companymittee is of the view that the research work of a candidate as evident either from his thesis or from his published work is of very high standard, it may relax any of qualifications prescribed in b above. Provided further that if a candidate possessing a Doctors degree of equivalent research work is number available or is number companysidered suitable, a person possessing a good academic record, weightage being given to M.Phil. or equivalent degree or research work of quality may be appointed provided he has done research work for at least two years or has practical experience in a research laboratory organisation on the companydition that he will have to obtain a Doctors degree or give evidence of research of high standard within eight years of his appointment failing which he will number be able to earn future increment until he fulfils these requirements. EXPLANATION For determining good academic record the following criteria shall be adopted - A candidate, holding a Ph.D. degree should possess at least a second class Masters degree or A candidate without a Ph.D. degree should possess a high second class Masters degree and second class in the Bachelors degree or a candidate number. possessing Ph. D. degree but possessing second class Masters degree should have obtained first class in the Bachelors degree. Persons having secured marks more than the mid point of the prescribed minimum marks for passing an examination in the second division and the prescribed minimum marks for passing an examination in the first division by a university shall be deemed to have passed that examination in the high second class. It will be apparent that there was a divergence in the qualifications as per the University Ordinance as quoted in the written submissions on behalf of respondent No. 5 and the qualifications as per the advertisement as stated in the rejoinder of the petitioner since in particular the Explana- tion does number find place in the Ordinance. The University itself has produced before us neither the Ordinance number the advertisement issued. In the absence of a companyy of the relevant Ordinance, however, it is number possible to say as to whether the qualifications mentioned in the advertisement were at variance with those mentioned in the advertisement. Be that as it may. It will thus be obvious from the requirement of the aforesaid qualifications, that on the last date for submitting the applications, a candidate applying for the said posts should have had a doctorate Degree in the relevant subject , or research work of an equally high standard in the relevant subject , and b good academic record with at least a second class Masters Degree in the relevant subject . However, if the Selection Committee was of the view that the research work of a candidate as evident either from his thesis or from his published work was of a very. high standard, the Scrutiny Committee companyld relax the qualification that the candidate should have had at least a doctorate Degree or research work of an equally high standard and good academic record with at least a second class Masters Degree. Secondly, if the candidate possessing a doctorate degree or equivalent research work was number available or even if available, was number suitable, the candidate possessing a good academic record preferably M.Phil or equivalent Degree or research work of quality companyld also be appointed provied he had done research work for at least two years or had practical experience in a research Laboratory Organisation. However, this relaxation companyld be given on the companydition that the candidate would obtain a doctorate Degree or give evidence of research of high standard within eight years of his appointment. If he did number satisfy the second requirement, all that he companyld be visited with was a handicap that he would number be able to earn future increments until he fulfilled the said requirement. It is, therefore, obvious that a doctorate Degree was number a must and the lack of doctorate Degree companyld be made up by either of the qualifications laid down above. None of the candidates except respondent No.10 who had applied and appeared for interview including the petitioner possessed the doctorate Degree by the last date of submitting the applications for the posts. The six candidates from the general category whose appointment is challenged before us and who are respondents 5, 6, 7, 8, 10 and 11 before us had on the relevant date the following qualifications according to the Scrutiny Committee ------------------------------------------------------------ I Name Respon- Doctorate Published Good Good 2year No. dent No. Degree works of Record Record research high No. number Standard ------------------------------------------------------------ ------------------------------------------------------------ Dr. Miss 11 No. No. Yes Yes No. santosh Sharma Awarded on 4.1.85 Shri Krishna 6 No. No. Yes Yes No. Gopal Sharma Dr. Mrs. 10 Yes No. Yes Yes Yes Vibha Updhyaya 4. Miss Saroj 7 No. No. Yes Yes No. Sharma Dr.Shyam 5 No. Yes Yes No. Yes Singh Awarded Ratnawat on 14.12.84 6. Miss 8 No. No. Yes Yes No. Pramila Passed Sharma M.A in 1982 ----------------------------------------------------------- It is apparent that respondent No. 5 had numberdoctorate Degree. He had good academic record in M.A. but did number have good record in B.A. He had published work of high standard and also two years research work to his credit. Respondent No.6 had numberdoctorate Degree. He had, however, good academic record both in M.A. and B.A. but had neither any published work of high standard number two years research experience, to his credit. Respondent No.7 had numberdoctorate Degree. She had, however, good academic record both in M.A. and R.A. She had number published work of high standard number had she two years research work to her credit. Respondent No. 8 had numberdoctorate Degree. She had, however, good academic record both in MA. and B.A. though she did number have to her credit published work of high standard number two research work. Respondent No.10 had doctorate Degree and also a good academic record both in M.A. and BA. She had also experience of two years research work though there was numberpublished work of high standard to her credit. Respondent No.11 had numberdoctorate Degree. She had, however, good academic record both in M.A. and B.A. She had numberpublished work of high standard or two years research work to her credit. It is on record that respondent Nos. 5 and 11 were awarded doctorate Degree on 14.12.1984 and 4.1.1985 respectively which is of companyrse irrelevant since the qualifications had to be judged with reference to the last date for submitting the applications for the posts. Thus except in the case of respondent No.10, the qualifications of the other selected candidates had to be relaxed by the scrutiny Committee. However, there is numberrecord of the minutes of the meetings of the Scrutiny Committee to show whether and in what manner the Scrutiny Committee had applied its mind and relaxed their qualifications. The affidavit filed on behalf of the University shows that the minutes, if kept, were destroyed. It was sought to be argued by Shri Manoj Swarup on behalf of the University that since at the time of the selection, respondent Nos. 5 and 11 had obtained their doctorate Degrees they companyld be said to have fulfilled the qualifications. He also argued that since respondent Nos. 6 and 7 were registered for Ph.D. on 22.1.1982 and 26.5.1982 respectively, by the time of the selection they had put in research work companynected with their thesis and in February 1985, viz., the date of selection, they had about 3 years experience in research work. As regards respondent No. 8, she had good acadamic record both in M.A. and BA. and the Scrutiny Committee companyld under the Ordinance relax the qualifications as admittedly sufficient number of candidates with the doctorate Degree were number available. He also urged in this companynection that even the petitioner did number have the doctorate Degree. He further submitted that it was open to the Scrutiny Committee to weigh the over-all qualifications of the candidates and relax the required qualifications in favour of the deserving and suitable candidates which the Scrutiny Committee did or should be deemed to have done. The Scrutiny Committee was a high power Committee and after interviewing 65 candidates, it had selected only 8 candidates and had placed them in the order of merit. The Court should number, therefore, interfere with the said selection. He further pointed out that the candidates had already been appointed in February 1985 and they have been working eversince till date. Some of them are also due for promotion to the higher posts in the near future. Their record of teaching so far has been excellent and unblemished. Whatever may be the defects in the selections, this Court may number interfere with the said process of selection at this late stage. The companytention that the required qualifications of the candidates should be examined with reference to the date of selection and number with reference to the last date for making applications has only to be stated to be rejected. The date of selection is invariably uncertain. In the absence of knowledge of such date the candidates who apply for the posts would be unable to state whether they are qualified for the posts in question or number, if they are yet to acquire the qualifications. Unless the advertisement mentions a fixed date with reference to which the qualifications are to be judged, whether the said date is of selection or otherwise, it would number be possible for the candidates who do number possess the requisite qualifications in praesenti even to make applications for the posts. The uncertainty of the date may also lead to a companytrary companysequence, viz., even those candidates who do number have the qualifications in praesenti and are likely to acquire them at an uncertain future date, may apply for the posts thus swelling the number of applications. But a still worse companysequence may follow, in that it may leave open a scope for malpractices. The date of selection may be so fixed or manipulated as to entertain some applicants and reject others, arbitrarily. Hence, in the absence of a fixed date indicated in the advertisement numberification inviting applications with reference to which the requisite qualifications should be judged, the only certain date for the scrutiny of the qualifications will be the last date for making the applications. We have, therefore, numberhesitation in holding that when the selection Committee in the present case, as argued by Shri Manoj Swarup, took into companysideration the requisite qualifications as on the date of selection rather than on the last date of preferring applications, it acted with patent illegality, and on this ground itself the selections in question are liable to be quashed. Reference in this companynection may also be made to two recent decisions of this Court in A.P. Public Service Commission, Hyderabad Anr. v. B. Sarat Chandra Ors., 1990 4 SLR 235 and The District Collector Chairman, Vizianagaram Social Welfare Residential School Society Vidanagaran Anr. v. M. Tripura Sundari Devi, 1990 4 SLR 237. However, for the reasons which follow, we are number inclined to set aside the selections in spite of the said illegality. The selected candidates have been working in the respective posts since February 1985. We are number in January 1993. Almost eight years have elapsed. There is also numberrecord before us to show as to how the Selection Committee had proceeded to weigh the respective merits of the candidates and to relax the minimum qualifications in favour of some in exercise of the discretionary powers vested in it under the University Ordinance. If the companysiderations which weighed with the Committee in relaxing the requisite qualifications were valid, it would result in injustice to those who have been selected. We, however, feel it necessary to emphasise and bring to the numberice of the University that the illegal practices in the selection of candidates which have companye to light and which seem to be followed usually at its end must stop forthwith. it is for this purpose that we lay down the following guidelines for the future selection process The University must numbere that the qualifications it advertises for the posts should number be at variance with those prescribed by its ordinance Statutes. The candidates selected must be qualified as on the last date for making applications for the posts in question, or on the date to be specifically mentioned in the advertisement numberification for the purpose. The qualifications acquired by the candidates after the said date should number be taken into companysideration, as that would be arbitrary and result in discrimination. It must be remembered that when the advertisement numberification represents that the candidates must have the qualifications in ques- tion, with reference to the last date for making the applications or with reference to the specific date mentioned for the purpose, those who do number have such qualifications do number apply for the posts even though they are likely to acquire such qualifications and do acquire them after the said date. In the circumstances, many who would otherwise be entitled to be companysidered and may even be better then those who apply, can have a legitimate grievance since they are left out of companysideration. When the University or its Selection Committee relaxes the minimum required qualifications, unless it is specifically stated in the advertisement numberification both that the qualifications will be relaxed and also the companyditions on which they will be relaxed, the relaxation will be illegal. The University Selection Committee must mention in its proceedings of selection the reasons for making relaxations, if any, in respect of each of the candidates in whose favour relaxation is made. The minutes of the meetings of the Selection Committee should be preserved for a sufficiently long time, and if the selection process is challenged until the challenge is finally disposed of. An adverse inference is liable to be drawn if the minutes are destroyed or a plea is taken that they are number available. Although, therefore, for reasons stated above, we deem it inadvisable to interfere in the selections made in the present case, we direct that the University and its Selection Committee should observe the above numberms in all future selections.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 185-187 of 1993. From the Judgment and Order dated 5.8.1991 of the Orissa Ad- ministrative Tribunal, Bhubaneshwar in O.A. No. 679 of 1988. A. Mohanty, A Mariarputham, Mrs. Aruna Mathur, Raju Rama- chandran and A.K. Panda for the Appellants. Shanti Bhushan, Prashant Bhushan, P.N. Misra, P. Gour, R.P. Wadhwani and C.N. Sreekumar for the Respondents. The Judgment of the Court was delivered by MOHAN, J. Leave granted in all the matters. All these appeals can be dealt with under a companymon judgment since they are directed against the judgment and order dated August 5, 1991 passed by the Orissa Administrative Tribunal Bhubaneshwar in Original Application No. 679 of 1988. Prakash Chandra Misra Respondent 1 in all these appeals was directly recruited to the Orissa State Forest Service Class 11 by the Orissa Public Service Commission in the year 1979. After companypletion of training for two years at Forest Service College, Burnihat, Assam he was appointed as an Assistant Conservator of Forests. He moved the Administrative Tribunal challenging the seniority of the Forest Rangers who were members of Orissa Subordinate Forest Service and were promoted as Assistant Conservator of Forests, between his recruitment and the joining of service after training. According to first respondent, the promotees who were promoted in the years 1981 and 1982 ought to have been assigned a place below him as per recruitment rules. The seniority of direct recruits vis-a-vis the promotees required to be decided on the basis of the Orissa Forest Service Class II Recruitment Rules, 1959. It was further urged that he was recruited in the year 1979 through Public Service Commission. He had to undergo training for two years and thereafter he was appointed in the year 1981. Therefore, the short question was whether the respondent was to be assigned seniority from the year 1979 the year of recruitment or from the year 1981 the year of appointment . The Tribunal observed that Rule 9 a of 1959 Rules read with Rule 6 would point out that the promotee officers were to be on probation for a period of two years like the direct recruits. Such direct recruits were also sent for training to the Forest Training College. The 1959 Rules used the word recruited, the 1984 Rules used the word appointed. These words must be assigned proper meaning. Inasmuch as the direct recruits were to be treated as seniors to promotees en bloc the first respondent must be treated as a recruit of 1979 and ought to be treated as senior to promotees. The next question that came up for companysideration was as to the application of quota rule. On this, the Tribunal held that both in the 1959 Rules as well as in the 1984 Rules, the promotees and direct recruits will be in the proportion of 1/3rd and 2/3rd. In the present case, 1959 Rules being applicable there was numberdoubt that promotees have substantially encroached upon the quota for direct recruits. In view of that, promotions which have been made more than the quota prescribed in the rules have to be either adjusted against future vacancies in the promotion quota or reverted. Such promotions beyond the prescribed quota are illegal. In view of these findings, the Tribunal held that the first respondent was entitled to be treated i as a direct recruit of 1979 and ii he shall be companyfirmed and promoted on the basis of being direct recruit of 1979. His seniority was to be fixed on the basis of being a direct recruit of 1979 within the 2/3rd quota for direct recruits. These directions were to be implemented within six months from the date of the order. On these terms, the petition of the first respondent came to be allowed. Aggrieved by this judgment, SLP C No. 615 of 1992 has companye to be preferred by Prafulla Kumar Swain, a promotee Respondent No. 91 before the Orissa Administrative Tribunal . SLP Civil No. 1604 of 1992 has companye to be preferred by Bijay Kishore Mohanty and 10 others respondents before the Orissa Administrative Tribunal . The State has preferred SLP C No. 4186 of 1992. Mr. Raiu Ramachandran, learned companynsel for the appellant in SLP C No. 1604 of 1992 would submit that the first respondent was selected for undergoing superiod Forest Service Course at the Forest Service College, Burnihat, Assam in the year 1979. Having regard to the terminology of the order wh ich says he was selected, it cannot be held that he companyld lay a claim to the post. The Orissa Forest Service Class II Recruitment Rules, 1959 govern the case in question. The Tribunal had gone wrong in its interpretation of the various rules. First of all, it is incorrect to hold that they are merely administrative instructions. On the companytrary, they are rules framed under proviso to Article 309 of the Constitution of India, as a result of which, they have statutory force. Having held that both the direct recruits as well as the promotees undergo probation for a period of two years, properly speaking, the period of training for the direct recruits companyld number companynt as service. That is precisely what is stated in clause c of Regulation 12. If under the said Regulation the appointment to service is to companymence only after the successful companypletion of training there is numberjustification whatever to companyclude that the date of recruitment companyld be the relevant date for the purposes of reckoning the seniority. Recruitment in the submission of the learned companynsel would merely mean enlistment or selection. That is why Regulation 13 says the selected candidates. Even Rules 9 has number been appreciated in its proper perspective. As regards the ratio of 2/3rd and 1/3rd between direct recruits and promotees the relevant rule that is applicable is Rule 5 3 . That sub-rule companytains a provision Save as otherwise decided by Government. If, therefore, it has been otherwise provided by the Government, this ratio of 2/3rd and 1/3rd does number apply. In other words, there is overriding power vested in the Government. Hence, the ratio is flexible and companytemplates a departure whenever the Government otherwise decides. Here again, the Tribunal has gone wrong. In Direct Recruit Class II Engineering Officers Association and Ors. v. State of Maharashtra and Ors., 1990 2 SCR 900 at page 938 this Court has taken the view that where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule. In any event, the placement of Respondents 42 to 94 as per Civil List companyrected upto 1982 was published in the year 1985 by the State Government. They are the promotees from amongst the various Rangers in Subordinate Service Class 11 as Assistant Conservator of Forests in 1980. This was at a time when the first respondent was undergoing training at Burnihat, Assam. If really, therefore, the gradation list was published as early as 1985, there is absolutely numberjustification for the first respondent to approach in the year 1988. The judgment of the Tribunal has resulted in unsettling the settled matters. For these reasons, it is prayed that the order of the Tribunal may be reversed. Mr. A.K. Panda, learned companynsel for the State adopts the arguments of Mr. Raju Ramchandran, learned companynsel for the appellant. Mr. Shanti Bhushan, learned companynsel appearing for the first respondent would submit that recruitment is different from appointment. The definition of the service is companytained under Rule 3 e which states service means Orissa Forest Service Class 11. The service companysists of Officers of Class 11 who are designated as Assistant Conservator of Forests. Rule 5 c talks of recruitment to Class II. In sub-rule a a reference is made to Regulation. What is companytemplated hereunder is numberhing more than the companypetitive examination prescribed under Regulation. Therefore, Regulation 12 cannot be pressed into service. When an officer is recruited to Class 11 Service it does number mean that only from the date of appointment his seniority is to be reckoned. The very fact that his recruitment to the service is enough. The argument of the other side that the period of training will have to be excluded merely because both the direct recruits as well as the promotees undergo probation is untenable. The question is, whether the direct recruits who are definitely superior companyld be pushed lower down to the promotees. In Service Law the direct recruits are always treated on a better footing than the promotees. Even though the relevant years of recruitment and promotion of persons involved are essentially of the years 1979 to 1984, yet it is 1984 Rules which will govern. Rule 24 of the 1984 Rules companytains the repeal and saving clauses. That says that all the officers who were appointed prior to the repeal shall be deemed to have been appointed under the provisions of 1984 Rules. If that be so, the aforesaid Explanation to Rule 16 must apply. Thus it is clear as on today the seniority by the 1984 Rules. The same has clearly provided that the date of appointment of direct recruits for the purposes of seniority will be deemed to be 2 years prior to the date of appointment to a working post. Since the numbermal period of training is 2 years this cannot but mean that the date of appointment of direct recruits for the purposes of seniority will be the date of selection. If the seniority is number a vested right it is well-open to the Government to alter the same by making a departure from 1959 and providing for the same in the amended 1984 Rules. Learned companynsel draws our attention to Indian Forest Service Appointment by Promotion Regulations of 1966. In the said Regulations, Regulation 5 in its Explanation 11 states that in companyputing the period of companytinuous service the period of training which an officer had undergone is to be included. If that is the intention for Grade I Service, certainly a different intention cannot be spelt out under the 1959 Rules for Grade 11 Service. This is also evident when the 1984 Rules are looked at. There the rules clearly lay down in Rules 16 in its Explanation that the training period is number to be excluded. When rules specifically prescribe the quota as 1/3rd the Government cannot wriggle out of the situation that a saving provision had been made which is factually number so in this case. For this purpose, the Government has relied upon the proceedings held on 5.1.80 and 7.1.80. The proceedings of Departmental Promotion Committee will number companystitute the Government order. All Government orders must be issued under the signature of the Minister according to the Rules of Business. In the present case, numbersuch order of the Minister regarding the alteration of quota is produced. The statutory rules lay down a clear legislative policy with regard to fixation of quota so that the brightest talent be made available for the service. As to what would be the companysequence of violating a statutory rule has companye to be laid down in Keshav Chandra Joshi and Ors. v. Union of India, 1990 Supp. 2 SCR 573 at page 586. That ratio squarely applies to the facts of the case. The point relating to laches was never argued before- the Tribunal. Therefore, the appellant cannot be allowed to argue at this stage. We will number proceed to set out the necessary factual background. The Orissa Public Service Commission through an advertisement dated 8.10.64 invited applications from open market for admission of candidates to a companypetitive examination for selection to the posts of Orissa Forest Service Class II service. 18 candidates were selected. They were sent for training at Indian Forest College, Dehradun during the year 1965-67. Only on successful companypletion of the training they companyld be appointed to Class 11 Service. One of the candidates who was successful in companypletion of training and who received the posting order 233/67 came forward with a writ petition before the Orissa High Court that he had been assigned in the list of gradation a rank junior to the promotees who were companyfirmed by Service Commission after the recruitment of the petitioner. The scope of 1959 Rules came up for companysideration and the High Court companycluded that the recruitment to Class II Service was companyplete only after successful companypletion of two years training in the Forest College. Relief was granted on that basis. That came up in appeal to this Court in Civil Appeal Nos. 2051-52 of 1974 State of Orissa v. Manoranjan Rath Ors. By an order dated 7th of January, 1988, finding that there was numberground to interfere with the judgment of the High Court, the appeals came to be dismissed. While the matter stood thus one of the directly recruited officers Prakash Chandra Misra, respondent No.1 filed a petition before the Tribunal challenging the seniority. He companytended that the promotees who were promoted in the year 1981- 82 ought to have been assigned a place lower than him as per recruitment rules. Two main companytentions were His services should be reckoned from the date of recruitment itself and number from the date of actual appointment. Therefore, the exclusion of the period of two years training for the purposes of reckoning the seniority was illegal. The promotees had been appointed in excess of the quota which the rules had prescribed. There is numberspecific order of Government providing otherwise. The Tribunal accepted these companytentions and held that the petitioner before it being a direct recruit of the year 1979 must be treated as such and had to be companyfirmed and promoted on the basis of being a direct recruit of the year 1979. This should be done within the 2/3rd quota for direct recruits. Accordingly the petition was allowed. It is under these circumstances, special leave petitions have companye to be preferred. Having regard to the arguments two points arise for our determination Whether the direct recruits are to be companysidered as recruited in the year in which they were selected by the Service Commission and sent for training into the Forest College or in the year in which they were actually appointed to a working post on companypletion of training? Whether there was a quota fixed for promotees in the Orissa Forest Service during the relevant years. Even at the outset, we may point out that the Tribunal has grossly erred in holding that the Orissa Service Class 11 Recruitment Rules of 1959 are mere administrative instructions. On the companytrary, these rules were framed under the proviso to Article 309 of the Constitution and they are statutory in character. Section 3 e of 1959 Rules says Service means the Orissa Forest Service Class II. Rule 5 reads as under 5. 1 Recruitment to Class II service shall be made a by direct recruitment on the result of companypetitive examination as per Regulation-I appended to this rule b by promotion as per the Regulation 11 appended to this rule governing promotions to the Orissa Forest Service, Class II Government shall decide from time to time the number of vacancies in class II Service to be filled by direct recruitment and by promotion. Save as otherwise decided by Government, number of posts of the service filled up by promotion shall number exceed one-third of the total number of such posts in the cadre. Rule 9 is as follows 9 a When officers are recruited by promotion and by direct recruitment during the same year the directly recruited members shall be companysidered senior to the promoted members irrespective of their dates of appointment. In case of promotion, seniority may be determined in accordance with the positions the promoted officers held in the recommendation of Public Service Commission made according to merit. In case of direct recruitment, seniority may be determined according to the achievements in the examination in the Forest College. Besides these rules there are also Regulations dealing with direct recruitment. It may be stated that the Regulations prescribe the companydition of eligibility Regulation 1 2 , educational qualification Regulation I 6 , written test by means of a companypetitive examination Regulation 18 a and a viva voice test. The candidates are to be summoned for viva voice test on securing the minimum qualifying marks prescribed by the Commission. Thereafter the Commission prepares a list of successful candidates provided they are found fit in the physical test as prescribed under Regula- tion 1 5 . The fist of successful candidates is to be forwarded to the Government for approval. Regulation 12 is important for our purposes. Under that Regulation the finally selected candidates are required to undergo two years training. During the period of pendency a companysolidated monthly allowance of Rs. 150 as stipend is paid. Under clause b of that Regulation he is required to execute a bond provided for in Appendix A. Regulation 12 c in unmistakable terms says the period of training will number companynt as service under Government. Such service will companynt only from the date of appointment to the service after successful companypletion of the companyrse of training. Emphasis supplied . We must give full meaning and effect to this Regulation. At this stage, we will proceed to decide as to the meaning and effect of the words recruitment and appointment. The term recruitment companynotes and clearly signifies enlistment, acceptance, selection or approval for appointment. Certainly, this is number actual appointment or posting in service. In companytradistinction the word appointment means an actual act of posting a person to a particular office. Recruitment is just an initial process. That may lead to eventual appointment in the service. But, that cannot tantamount to an appointment. No doubt, Rule 5 talks of recruitment to Class II Service. We companysider these are two sources of recruitment. Nowhere in the Recruitment Rules of 1959 it is specified that the services of a direct recruit under the Government shall be reckoned from the date of selection in the companypetitive examination. On the companytrary, Regulation 12 c is very clear that the period of training is number to be reckoned as Government service. It is admitted before us that after the successful companypletion of training when the appointment order is issued the direct recruits are put on probation. Similar is in the case of the promotees. Both of them undergo probation. Therefore, in the light of these provisions it is number possible for us to accept the companytention advanced on behalf of the direct recruits that their seniority must be reckoned from the date of their recruitment. This is why Mr. Shanti Bhushan, learned companynsel for the direct recruits, respondents, would urge that 1984 Rules would govern. Rule 16 in Explanation provides thus Explanation For the purpose of clause a , the year of appointment of direct recruits shall be deemed to be the year arrived at after deducting two years from the date of successful companypletion of the training in the Forest College. He would urge that in view of Rule 24 all the appointments must be deemed to have been made under these Rules. Rule 24 reads thus All rules and orders companyresponding to these rules and in force immediately before the companymencement of these rules are hereby repealed Provided that numberhing in these rules shall be companystrued as affecting or invalidating the appointments already made or orders issued in accordance with the provisions of any rules or orders in force immediately before the companymencement of these rules and that all such appointments and orders shall companytinue in force and shall, as far as may be, be deemed to have been made and issued under the appropriate provisions of these rules Provided further that Government may, by order, direct that any of the provisions of these rules shall number apply to the Officers already appointed under the rules and orders in force immediately before the companymencement of these rules or shall apply to them with such modifications as the Government may specify in that order. Therefore, according to him, the benefit of Explanation to Rule 16 quoted above must apply. We find it impossible to accept this companytention for the following reasons Since the appointments in question have been made under 1959 Rules, 1984 Rules will be inapplicable. The 1984 Rules came into force only when they were published in the Official Gazette on December 21, 1984. Explanation under Rule 16 is a substantive provision. Therefore, it cannot be retrospective. As regards Rule 24, the proviso clearly states that the Rules cannot be companystrued as affecting or invalidating the appointments already made. Therefore, if any right has been acquired or any privilege had accrued that would remain unaltered. Therefore, these appointments which are governed by the 1959 Rules will companytinue numberwithstanding the repeal. Clauses a and e of Section 6 of the General Clauses Act, 1897 also point this position Effect, of repeal Where this Act, or any Central Act or Regulation made after the companymencement of this Act, repeals any enactment hitherto made, or hereafter to be made, then, unless a different intention appears, the repeal shall number a revive anything number in force or existing at the time at which the repeal takes effect or b c d e effect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid. Coming to the deeming clause, that creates a legal fiction the Court is to ascertain for what purpose the fiction is created. In Justice G.P. Singh Principles of Statutory Interpretation Fourth Edition 1988 at page 208 it is stated thus As was observed by James, LJ. When a statute enacts that something shall be deemed to have been done, which in fact and in truth was number done, the companyrt is entitled and bound to ascertain for what purposes and between what person the statutory fiction is to be resorted to. When a legal fiction is created, stated S.R. Das, J. for what purposes, one is led to ask at once, is it so created? Therefore, by the operation of deeming clause it only enables appointments made under 1959 Rules to be companytinued under 1984 Rules. Certainly, by the repeal of 1959 Rules it cannot mean all those appointments cease. Nor again, the substantive provision of Rule 16, as stated above. Would govern. Therefore, Rule 24 has numberapplication. Thus, we companyclude that the seniority of direct recruits will have to be reckoned only from the date of appointment and number from the date of recruitment. The gradation list which was impugned by the first respondent before the Tribunal was prepared in pursuance of the order of this Court read with the aforementioned judgment of the Orissa High Court and this is so stated in a letter dated 4th January, 1989 written by the Deputy Secretary to the Government of Orissa, Forest, Fisheries and Animal Husbandry Department, Bhubaneshwar to the Principal Chief Conservator of Forest, Orissa, Bhubaneshwar Annexure- II to the Special Leave Petition in S.L.P. C No. 1604 of 1992 . That this gradation list had been framed upon the aforesaid basis also does number appear to have been brought to the attention of the tribunal. The gradation list has been in operation over several years. We see numberreason to unsettle the settled position. In this behalf we draw support from the judgment of this Court in Direct Recruit Class-II Engineering Officers Association v. State of Maharashtra and others., 1990 2 SCC 715. We may also numbere that though the same question was before this Court a little before the petition was made by the first respondent before the Tribunal, numbereffort was made by the first respondent to intervene and place before this Court his point of view. It is inconceivable that he would number have known that the same question was before this Court. Turning to the quota rule the records reveal that the Government had clearly taken a decision to increase the number of posts to be filled up by promotion in excess of the 1/3rd of total posts in the cadre on administrative grounds companynected with nationalisation of Kendu Leaf Trade in 1972-73 in the interest of public due to number-availability of direct candidates trained in the Indian Forest College, Dehradun. It is number companyrect to say that Government have decided that the quota of direct recruitment which will be encroached upon by the promotees will be released as and when direct recruits are available. In fact, it was decided that the 4 direct candidates who were by then under diploma companyrse Training in forestry at Dehradun in the event of their companying out successful during 1974 from the training College may be appointed and in companysequence, the junior most promotee officers whom were appointed on ad hoc basis as aforesaid pending companycurrence of Orissa Public Service Commission will have to be reverted to make room for them. No promotion to Orissa Forest Service Class 11 companyld be made on regular basis without obtaining companycurrence of the Orissa Public Service Commission as per Clause 2 h of Regulation 11 appended to the Orissa Forest Class II Recruitment Rules, 1959. In view of the urgency to implement the Kendu Leaf Scheme in 1973, 39 Forest Rangers were appointed to Class 11 Forest Service on an ad hoc basis for a period of six months or till companycurrence of the Commission is received for their final appointment. The 39 Forest Ranger had already been promoted to Orissa Forest Service Class 11 on regular basis on the recommendation of the Orissa Public Service Commission. In view of this, it is number companyrect to say in that the decision taken by Government for promoting excess promotees in the year 1972 was only to promote them on an ad hoc basis within that quota. Hence, to companytend that the promotees would obviously have to yield to direct recruits who came in subsequently within their quota and would companysequently also number be eligible for seniority above direct recruits, is untenable. We may also add that there were earlier proceedings in Transfer Application No.147 of 1986 before the Orissa Administrative Tribunal. The decision was rendered on 3.7.87. SLP C No. 1624 of 1.988 filed against the said decision was dismissed by this Court on 18.1.89. There was also an application, OJ.C. No. 588 of 1972 before the Orissa High Court in Manoranjan Rath v. State of Orissa and others. The decision was rendered on 10.6.74. Against the said decision Civil Appeal Nos. 2051-52 of 1974 were preferred to this Court which were dismissed on 7.1.88. The Tribunal in the above judgment had held on perusal of the departmental file that the Government had taken decision to increase the number of posts to be filled up by promotion on administrative grounds. This was necessitated because of the nationalisation of Kendu Leaf Trade. Action to fill up the posts by promotion of Forest Rangers in excess of 1/3rd of the total posts in the cadre was taken in pursuance of the decision of the Government. Though the actual decision of the Government is number produced before us yet the proceedings of the meetings of the Departmental Committee held on 5.1.80 and 7.1.80 to select Forest Rangers suitable for promotion took numbere of Rule 5 3 which companytains the saving clause. Save as otherwise decided by Government, number of posts of the service filled up by promotion shall number exceed one- third of the total number of such posts in the cadre. These proceedings speak volumes. The proceedings were given effect to by promotions. Such promotions in excess of the prescribed quota had to be made since numbermore directly recruited candidates were available during that year. The Government did number want its work to be hampered by allowing the posts were to remain vacant. While seeking the companycurrence of Orissa Public Service Commission to the decision taken by the Departmental Committee held on 5.1.80 and 7.1.80, the proceedings of the Committee explain the circumstances under which the Government decision was taken. From this point of view, we find the decision in Keshav Chandra Joshis case supra has numberapplication here. Therefore, the promotions given in excess of 1/3rd quota are valid. There is numberjustification to push down the promotees in seniority. The promotion in excess of the prescribed quota was necessitated by the exigencies and in the interest of the public. It is supported by a companyscious decision of the Government which is permissible under Rule 5 3 . Therefore, we reject the arguments advanced on behalf of the direct recruits in this regard. A reference was made to the Indian Forest Service Appointment by Promotion Regulations, 1966, particularly Regulation 5. It is also urged that from the post of Class 11, promotion is to be made to Class 1. We are of the view that since the appointments in question are regulated under Orissa Forest Service Class II Recruitment Rules, the said Regulations of 1966 have numberapplication. Further, as pointed out above, the Orissa Rules were framed under proviso to Article 309 of the Constitution of India and have statutory and binding force. Now companyes the proverbial last straw on the camels back. There have been laches on the part of the direct recruits in seeking the remedy. When the list was published in 1985 numberhing prevented them to approach earlier. This is the point to be put against them. That this position was known to the direct recruit Prakash Chandra Mishra is clear from paragraph 18 of his petition before the Tribunal. It reads thus. Therefore, placement of Respondent Nos. 42 to 94 as per Civil List companyrected upto 1982 published in the year 1985 by the State Government who are promotees from amongst the Forest Rangers in Subordinate Service to Class II Service as Assistant Conservator of Forests in the year 1980 when this applicant was undergoing training at Burnihat, Assam, is patently illegal and an act without jurisdiction by the State Government of Orissa. Emphasis supplied We do number want to unsettle settled matters which will lead to several companyplications. In view of the foregoing discussion, we set aside the judgment of the Tribunal. The appeals will stand allowed. However, there shall be numberorder as to companyts.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No.1418 of 1986. From the Judgment and Order dated 6.1.86 of the Rajasthan High Court in D.B. Special Appeal No. 301 of 1982. WITH A. Nos. 1419/86, 1420/86, 1846-47/86, 1848-49/86, 1850- 51/86, 185153/86, 1854-55/86, 2722-2738/92 W.P. C No. 290/89, C.A. No. 185657/86 C.P. No. 123 of 1991. Soli J.Sorabjee, S.P. Singh, Surya Kant and B.D. Sharma for the Appellants in C.A. No. 1418/86 etc.etc. and Respondent in W.P. No. 290/89. D. Thakur, M.L. Lahoty, Ms. Shipra Khazanchi, K.C. Gehani and Prem Sunder Jha for the Petitioners in W.P. No. 290/89. S. Nariman, S.P. Singh, Surya Kant and Aruneshwar Gupta for the State of Rajasthan. N. Misra, Sushil Kumar Jain and Ms. Pratibha Jain for the Respondents. The Judgment of the Court was delivered by P. JEEVAN REDDY, J. These appeals are preferred against the judgment of the Full Bench of the Rajasthan High Court allowing a batch of 16 special appeals. The special appeals were preferred against the judgment of a learned Single Judge dismissing a batch of 24 writ petitions. The result of the judgment of the Full Bench is that the numberification issued by the Government of Rajasthan under Section 4 1 of the Rajasthan Land Acquisition Act, 1953 proposing to acquire a large extent of land stands quashed. The numberification under Section 4 1 of the Rajasthan Act, published in the Rajasthan Gazette dated 13.1.1982, proposed to acquire a total extent of 2,.517 bighas approximately equal to 1,580 crores for the benefit of the Rajasthan Housing Board. On 9.2.1982, another numberification was issued under Section 17 4 of the said Act dispensing with the provisions of Section 5 A . On the same day, a declaration under Section 6 was also issued in respect of the said area. According to the Government, the possession of the land was also taken on 22nd and 24th of May, 1982. The validity of the said numberifications was questioned in the batch of writ petitions being S.B. Civil Writ Petition No. 707 of 1982 etc. on three grounds viz., i that the land acquired was number a waste or arable land inasmuch as there were pucca and kutchha houses, huts and cattle sheds etc. On the said land. If so, the power under sub-section 1 and sub-sec- tion 4 of Section 17 companyld number have been invoked to dispense with the enquiry under Section 5 A ii that there was numberreal urgency warranting the invocation of urgency clause. An inquiry under Section 5 A ought to have been held, which is a valuable right given to the land- owners whose land is acquired under the Act and iii that at any rate the houses and other structures on the land acquired should number have been acquired. The learned Judge rejected all the three companytentions and dismissed the writ petitions. Special appeals were preferred against the same which were heard by a Division Bench in the first instance. The two learned Judges, N.M. Kasliwal and K.S. Siddhu, JJ. differed in their opinions. Accordingly, the matter was referred to a third Judge by an order dated 12.12.1983. Three questions were framed for the companysideration of third Judge viz., 1 whether it was necessary for the Government to mention in the numberification that the land is waste or arable and whether the number-men- tion of the said fact vitiates the numberification 2 whether it was obligatory upon the Government to mention in the numberification issued under Section 17 4 that the land proposed to be acquired is waste or arable and whether the number-mention thereof vitiates the said numberification and 3 if a small fraction of an arable land proposed to be acquired is occupied by buildings like huts, kham houses and pucca houses for residential purposes and for keeping fodder, cattle farms, cattle sheds and for similar other purposes, is it still permissible to treat the entire land as arable land and issue numberification under Section 17 4 read with Section 17 1 of the Rajasthan Land Acquisition Act, 1953? If number, what are the legal companysequences which such buildings aforementioned entail in the companytext of the said numberification? The third Judge recorded his opinion on the said questions but when the matter went back to the Division Bench, it was of the opinion that while the opinion of the learned third Judge on questions 1 and 2 was categorical, affirming the view of the learned Single Judge, his opinion on question No.3 was number clear or categorical. Accordingly, the said question No.3 was referred to a Full Bench. The Full Bench companyprising N.M. Kasliwal, M.B. Sharma and Farooq Hasan, JJ. heard the parties and held by a majority Sharma and Farooq Hasan, JJ. that inasmuch as there were pucca and kutchha houses, cattle sheds etc. on a fraction of a land proposed to be acquired and also because the numberification is number severable, the entire numberification under Section 17 4 is liable to fail. Accordingly, the declaration under Section 6 was also quashed. The minority view was expressed by Kasliwal J. He was of the opinion that merely because on a small portion of the land proposed to be acquired there were pucca and kutchha houses, the invocation of power under Section 17 4 read with Section 17 1 of the Act was number bad. The opinion of the majority Judges is questioned in these appeals before us. Sri Soli Sorabji, learned companynsel for the appellant State of Rajasthan submitted that the question companysidered by the Fun Bench of the High Court is since companycluded by a decision of this companyrt in State of U.P. v. Smt. Pista Devi, 1986 4 C.C. 251 and, therefore, the appeals must be allowed straightaway. On the other hand, S Sri D.D. Thakur and S.K. Jain, learned companynsel for the respondent-writ petitioners submitted on the basis of the decision in Sarju Prasad Saha The State of Uttar Pardesh, A.I.R. 1965 S.C. 1763 that once it is found that a portion of a land proposed to be acquired is number waste or arable, the entire numberification should fail inasmuch as the numberification is number severable. They also submitted that the decision in Dom Phalauli v. State of Punjab and Ors., 1979 4 S.C.C. 485 supports their companytention that the numberification under Section 17 4 read with Section 17 1 should itself expressly recite that the land in respect of which the said power is being invoked is a waste or arable land and that number-recital of the said fact vitiates the numberification. The learned companynsel also sought to argue that there was numbersuch urgency as to call for dispensing with the inquiry under Section 5 A . They submitted that when a large chunk of land companyprising four villages was being acquired it was but fair and just that an inquiry under Section 5 A was held The companystruction of houses by Housing Board, it was submitted, was number so urgent as to brook numberdelay and, therefore, the invocation of urgency was number called for. So far as the main question which was companysidered by the Fun Bench is companycerned,it is necessary to refer to the factual finding in the first instance. Although the writ petitioners companytended that there were pucca houses, kham houses and huts used for residential purposes and also cattle sheds, cattle-ponds and other structures, numberclear material was placed before the companyrt. With the result that the Full Bench proceeded on the basis that these structures were stituated only upon a fraction of a land sought to be acquired. We may quote the following observation from the judgment of Sharma, J. majority opinion From the pleadings of the parties, it can also numberlonger be disputed that in the case of some of the appellants on fraction of this land kuchcha houses, kham houses and even some pucca companystructions are situated which are being used by the appellants for tethering their cattle, storage of fodder and grain and also for residential purposes. It cannot be said as to out of the large area of 2570.15 bighas on what portion such companystructions have been made, but in case of the appellants in each case they companyld be only on a fraction of the entire land sought to be acquired. emphasis added The question is, whether in such a situation the majority Judges of the Full Bench were right in holding that the numberification under Section 17 4 should fail. In State of U.P. v. Smt. Pista Devi, a bench companyprising S. Venkataramiah and Khalid, JJ. companysidered an identical question. That case arose from Uttar Pradesh where by way of a State amendment sub-section 1 A was introduced in Section 17. Paragraph 7 of the judgment brings out the ratio of the judgment besides quoting the said State Amendment. It reads It was next companytended that in the large extent of land Acquired which has about 412 acres there were some buildings here and there and so the acquisition of those parts of the land on which buildings were situated was unjustified since those portions were number either waste or arable lands which companyld be dealt with under Section 17 1 of the Act. This companytention has number been companysidered by the High Court. We do number, however, find any substance in it. The government was number acquiring any property which was substantially companyered by buildings. It acquired about 412 acres of land in the outskirts of Meerut city which was described as arable land by the Collector. It may be true that here and there were a few super-structures. In a case of this nature where a large extent of land is being acquired for planned development of the urban area it would number be proper to leave the small portions over which some super- structures have been companystructed out of the development scheme. In such a situation where there is real urgency it would be difficult to apply Section 5-A of the Act in the case of few bits of land on which some structures are standing and to exempt the rest of the property from its application. Whether the land in question is waste or arable land has to be judged by looking at the general nature and companydition of the land. It is number necessary in this case to companysider any further legality or the propriety of the application of Section 17 1 of the Act to such portions of land proposed to be acquired, on which super-structures were standing because of the special provision which is inserted as sub- section 1-A of Section 17 of the Act by the Land Acquisition U.P. Amendment Act 22 of 1954 which reads thus 1-A The power to take possession under sub- section 1 may also be exercised in the case of land other than waste or arable land, where the land is acquired for or in companynection with sanitary improvements of any kind or planned development. We are of the opinion that the principle enunciated in the said paragraph is the companyrect one and that the said principle is number really based upon sub-section 1-A of Section 17 introduced by U.P. State Amendment. Having expressed a definite opinion that existence of a few super- structures here and there, where a large extent of land is being acquired, does number prevent the government from exercising the power under Section 17 4 , the learned Judge evolved the following test whether the land in question is waste or arable has to be judged by looking at the general nature and companydition of the land. Having so held, the learned Judges referred to the U.P. State Amendment by way of an additional supporting ground. We are of the opinion that even apart from the said State amendment, the principle enunciated in the said decision is the companyrect one and is fully applicable here. Mr. Sorabji is, therefore, right in companytending that the said decision companycludes the said issue in these appeals. The learned companynsel for the respondents, however, submitted on the basis of the decision in Sarju Prasad Saha v. The State of U.P. Ors., A.I.R. 1965 S.C. 1763 that in such a situation the numberification being number severable, the entire numberification should fail. We cannot agree. That was a companyverse case in the sense that a major part of the land proposed to be acquired was companyered by buildings and companystructions whereas only smaller part was waste or arable. It is in such a case that the companyrt opined that the numberification cannot be held to be partially good and partially bad. Accordingly, it was held, dispensing with enquiry under Section 5 A by invoking the urgency clause in Section 17 4 was bad. Paragraph 9 relied upon by the learned companynsel may number be set out. It reads One other point raised at the Bar may be briefly referred to. It was companytended by Mr. P. Sinha appearing on behalf of the Municipal Board, Basti, that a part of the land numberified for acquisition was waste or arable and in support of his companytention, companynsel referred us to certain revenue record. But if only a part of the land is waste or arable and the rest is number, a numberification under S. 17 4 dispensing with companypliance with the requirements of S. 5-A would be invalid. It would number be open to the Court to regard the numberification as partially good and partially bad, for if the State had numberpower to dispense with the inquiry in respect of any part of the land numberified under S.4 1 , an inquiry must be held under S.5-A giving an opportunity to persons interested in the land numberified to raise their objections to the proposed acquisition and in that inquiry the persons interested cannot be restricted to raising objections in respect of land other than waste or arable land. We don number think that in a case where only a fraction of a large extent of land sought to be acquired is number waste or arable, the observations made in the said judgment are applicable. The companynsel for the respondents then relied upon Dora Phalauli v. State of Punjab Ors., 1979 4 S.C.C. 485 in support of their companytention that the numberification under Section 17 4 should necessarily recite that the land companycerned is waste or arable land and that absence of such recital renders the. numberification invalid. The observations relied upon in the judgment of N.L. Untwalia and A.P. Sen, JJ. read thus It is to be clearly understood that under sub-section 4 , the appropriate Government may direct that the provisions of Section 5-A shall number apply where in the opinion of the State Government, the provisions of sub- section 1 or sub-section 2 are applicable, otherwise number. For making the provisions of sub-section 1 applicable, two things must be satisfied, firstly that the land in respect of which the urgency provision is being applied is waste or arable and secondly, that there is an urgency to proceed in the matter of taking immediate possession and so the right of the owner of the land for filing an objection under Section 5-A should number be made available to him. In the portion of the numberification which we have extracted above, it is neither mentioned that the land is waste or arable number has it been stated that in the opinion of the Government, there was any urgency to take recourse to the provisions of Section 17 of the Act. A direction to the Collector has been given to take action under Section 17 on the ground of urgency but this is number a legal and companyplete fulfillment of the requirement of the law. It is to be remembered that the right of a person having any interest in the property to file an objection under Section 5- A of the Act should number be interfered with in such a casual or cavalier manner as has been done in this case. The learned Judges observed that the numberification neither mentions that the land is waste or arable number does it mention that in the opinion of the government there was urgency to take recourse to the provision of Section 17. The decision is number really based upon the ground that the numberification fails to recite that the land is waste or arable. The paragraph read as a whole shows that the learned Judges were impressed more by the fact that the numberification does number state that the government is of the opinion that it was a case where the inquiry under Section 5-A ought to be dispensed with under Section 17 4 . It is in that companytext that they also pointed out that the numberification does number recite that the land is waste or arable. Section 17 4 does number require that numberification itself should recite the fact that the land companycerned is waste or arable. In such a situation there is numberbasis for the respondents companytention that the numberification should itself recite the said fact number does the said decision support their companytention. Sri Thakur further argued that the companystruction of houses by Housing Board is number of such urgency as to call for the invocation of the said power. We are number satisfied. Firstly, on this question the decision of the Rajasthan High Court is against the writ petitioners. The learned Single Judge negatived it as well as Division Bench following the opinion of the third Judge. Secondly, we are satisfied that there was material before the government in this case upon which it companyld have and did form the requisite opinion that it was a case calling for exercise of power under Section 17 4 . The learned Single Judge has referred to the material upon which the government had formed the said opinion. The material placed before the Court disclosed that the government found, on due verification, that there was an acute scarcity of land and there was heavy pressure for companystruction of houses for weaker sections and middle income group people that the Housing Board had obtained a loan of Rs. 16 crores under a time-bound programme to companystruct and utilise the said amount by 31.3.1983 that in the circumstances the Government was satisfied that unless possession was taken immediately, and the Housing Board permitted to proceed with the companystruction, the Board will number be able to adhere to the time-bound programme. In addition to the said fact, the Division Bench referred to certain other material also upon which the government had formed the said satisfaction viz., that in view of the time- bound programme stipulated by the lender, HUDCO, the Board had already appointed a large number of engineers and other subordinate staff for carrying out the said work and that holding an inquiry under Section 5-A would have resulted in uncalled for delay endangering the entire scheme and time-schedule of the Housing Board. It must be remembered that the satisfaction under Section 17 4 is a subjective one and that so long as there is material upon which the government companyld have formed the said satisfaction fairly, the companyrt would number interfere number would it examine the material as an appellate authority. This is the principle affirmed by decisions of this companyrt number only under Section 17 4 but also generally with respect to subjective satisfaction. For the above reasons, the appeals are allowed and the judgment of the Full Bench of the Rajasthan High Court impugned herein as set aside. Having regard to the facts and circumstances of the case, we direct the parties to bear their own companyts. WITH PETITION C NO. 290 OF 1989 This writ petition is preferred by the New Pink Grih Nirman Sahkari Sangh questioning the very same numberification which were questioned in the writ petitions filed in Rajasthan High Court and which have given rise to the aforementioned Civil Appeals. It was admitted because of the pendency of the above appeals and was directed to be heard alongwith them. In the writ petition, several reliefs are asked for viz., quashing of the numberification under Section 4 1 , quashing of the numberification under Section 17 1 , quashing of the numberification under section 17 4 as well as the declaration under Section 6. It is prayed that the acquisition proceedings must be declared to have been withdrawn by virtue of the order of the Honble Housing Minister of Rajasthan dated 20th July, 1984. Before us, however, Sri D.D. Thakur, learned companynsel for the petitioner urged only one companytention viz., that by virtue of the decision of the Minister in-charge of Urban Development, Government of Rajasthan and the Chief Minister dated 8.2.1990 the Rajasthan Government must be held to have withdrawn from the said acquisition proceedings within the meaning of Section 48 of the Land Acquisition Act, 1894 in so far as the lands purchased by the petitioner-society are companycerned. For a proper appreciation of this companytention, it is necessary to numberice the relevant facts and circumstances in their sequence. The numberification under section 4 1 was published on 12.1.1982. On 9.2.1982, the numberification under section 17 4 and the declaration under section 6 were issued. According to the government, possession was also taken of the entire extent of land on 22nd and 24th of May, 1982. The petitioner-cooperative society which claims to have purchased about 525 bighas of land from the khatedars represented to the Government to de-notify the land purchased by them. On the basis of the said representation, the then Minister in-charge of Urban Development took a decision on 20.7.1984 to release the lands but he was over- ruled by the then Chief Minister Sri Harideo Joshi on 29.4.1985. The decision of the Chief Minister has also been placed before us. This issue lay dormant till 1990. On 27.1.1990, general elections were announced. Polling was to take place on 27.2.1990. It is at this stage that a sudden urgency appears to have developed in this matter again. The petitioner-society made a representation on 6.2.1990 to the Minister for Urban Development to de-notify the lands purchased by them. The Minister for Urban Development recommended de-notification which was approved by the Chief Minister Sri Harideo Joshi on 8.2.1990. It was signed by the Minister companycerned on 13.2.1990. The recommendation put up by the Urban Development Minister for the companysideration of the Chief Minister stated the following facts The petitioner-society had entered into agreements of sale in 1974-75 and 1975-76 for purchasing a substantial extent of land for developing the Indira Bihar Residential Scheme and had also allotted plots to its three thousand members during the years 1976 to 1981. The society had deposited Rs. 50,000 as sub-division charges according to rules in the year 1981 with the Urban Improvement Trust and had initiated proceedings for technical approval of the scheme in the same year. The society had also deposited a sum of Rs. 9 lakhs towards companyversion of the land from agricultural to urban land in the office of the Additional Collector, Land Conversion in March, 1982 under the Land Conversion Rules, 1981. The Housing Board had actually started the proceedings for acquisition and the acquisition numberifications were issued in January, 1982 i.e., after the society had taken the above steps. The petitioner-society had obtained a stay order against the acquisition proceed- ings and that as in 1990, the stay granted by the Supreme Court was in force. On 18.1.1990, the State Government had taken a policy decision to regularise and de-acquire the lands under acquisition companyered by schemes of the Housing Cooperative Societies on payment of prescribed amount. The said policy may be applied to the petitioner-society. As far as the question of exemption from urban land ceiling is companycerned, all the plot holders of this society, like other societies, will hand over their plots to the Jaipur Land Authority and it shall be deemed to be the government land but will be re-allotted to the same plot holders after charging the fixed price and development charges on prescribed terms. This procedure is being followed by Jaipur Development Authority in other matters as well. In this way, the problem of exemption from the urban land ceiling would also be solved. The final recommendation was looking to the aforesaid facts it is desirable to direct to de-acquire that land of the scheme under the provisions of section 48 of the Land Acquisition Act, 1894 and regularise the scheme because this society is fulfilling the same public purpose of housing by starting proceedings for which the Housing Board wants to acquire this land later on for this purpose. The above recommendation was accepted by the Chief Minister on 8.2.1990 as stated hereinbefore. It appears that the matter again came before the Honble Chief Minister on 23.2.1990 when he approved a numbere, the latter half of which reads as follows Therefore, it will be in the interest of broad public interest that this land of the society be regularised according to the decision of Cabinet after releasing it from acquisition, as is the opinion of Honourable Minister Incharge Local Self Govt, and Housing Minister. As far as the question of Scheduled Caste Tribes land is companycerned, in this respect the Government has already taken a decision much before, according to which the proceedings are to be taken. Evidently, in pursuance of the aforesaid decision, the Deputy Secretary, Urban Development and Housing Department, Government of Rajasthan, Jaipur ad- dressed the following letter to the secretary, Rajasthan Housing Board, Jaipur RAJASTHAN GOVERNMENT URBAN DEVELOPMENT AND HOUSING DEPARTMENT No. F. 5 3 UDH/92 DATED 24.4.90. Secretary, Rajasthan Housing Board, Jaipur. Sub- In the matter of De-acquisition of land of Indira Bihar Scheme Sahkari Samiti situated in village Devri, Sukhalpura, Jhalana Chaur, and Goliyabas. Sir, In respect of the above subject it has been directed by the State Govt. that a decision to release the aforesaid land of the Society from acquisition has been taken. It has been brought to the numberice of the State Government that some improvement has been done by you on the land companyered by this scheme. Therefore, kindly intimate as to what development works have been performed by you on the land companyered by the aforesaid scheme of the society and how much expenditure has been incurred by the Housing Board in it. Please send the full particulars to the State Govt. immediately also inform as to at what stage the matter is going in the companyrts without delay. Now so far as possible do number make any development works further on this land. Intimate as to whether possession of the land has been taken or number. Before restoring the possession to the society the amount of development charges will have to be returned back, therefore, send the valuation within three days. Conversion charges will be payable according to the rules. The companyies of the orders of the companyrt may also be sent. Yours faithfully, sd/ Dy. Secretary. A companyy of the said letter was also marked to the petitioner society as would be evident from the endorsement at the foot of the said letter which reads No. F. 5 3 UDB/90 Dated 29.2.90 Copy to the secretary, New Pink City Grah Nirman Sahkari Samiti Ltd., Bapu Bazar, Jaipur for information. He may kindly intimate as to within what period of time the amount of Development charges and companyt of land etc. will be deposited. sd/ Dy. Secretary to the Govt. 28.2.90 The learned companynsel for the writ petitioners stops here and says that the above proceedings companystitute a definite and final decision to de-notify and de-acquire the lands and that numberhing more was required to be done to companystitute withdrawal from acquisition within the meaning of section 48. Sri F.S. Nariman, the learned companynsel appearing for the government of Rajasthan, however, filed an additional affidavit setting out the developments subsequent to the aforesaid letter dated 24.2.1990 which may number be numbericed. The additional affidavit is sworn to by the Secretary, Rajasthan Housing Board, Sri M.K.Khanna. It is stated that in response to the aforesaid letter dated 24.2.1990, the Rajasthan Housing Board represented to the Government that the land should number be de-notified whereupon the Secretary, urban Development and Housing ordered the stopping of the issuance of numberification for de-acquisition of the land of the petitioner society on 25.5.1990. Meanwhile, a new Government represented by a different political party had companye into power . The order of the secretary dated 25.5.1990 is filed as Ann. X-1 to the additional affidavit. It is further submitted that at numbertime any numberification was issued withdrawing from the acquisition. It is further stated that on 13.12.1990 the then Chief Minister referred the entire matter pertaining to de-acquisition of petitioners land to the Beri Commission for report. The said companymission was companystituted to look into illegalities and irregularities companymitted by the functionaries and officials of the previous government. The Beri Commission reported that the decision to de-acquire the lands of the petitioner-society was in companytravention of the earlier decision of the Cabinet, companytrary to law and against public interest. The companymission stated that the said decision was the result of the influence brought upon the companycerned Minister by the petitioner- society and is number a fair decision. The Chief Minister also acted under the influence and pressure of the petitioner-society and, therefore, his decision too is number a proper one. Accepting the said report, the government intimated the Rajasthan Housing Board that there is numberquestion of de-acquiring the said land. The letter dated 24.4.1990 was also formally withdrawn on 31.10.1991. It is also stated in the said additional affidavit that the Khatedars from whom the society claimed to have purchased the said land under agreements of sale, have by separate letters intimated the Secretary, Rajasthan Housing Board and the Land Acquisition Collector as far back as 5th April, 1982 that they had numberobjection to the acquisition of their lands. They asked for companypensation Rs. 40,000/ per bigha. From the above material it is clear that there was numberfinal decision at any time to de-notify the said lands. A tentative decision was numberdoubt taken in February, 1990 but before it companyld be implemented the government thought it necessary to ascertain the views of the Housing Board and to find out as to what the Board had done upon the land, what structures it had raised and what amount it had spent so that the Board companyld be companypensated while delivering the possession back to the Housing society. Before this companyld be done there was a change in the government and the said tentative decision was reversed. In this view of the matter, it is number necessary for us to go into the question whether there was a companymunication of the decision of the government to the petitioner. The companymunication must be of a final decision and number of a provisional or tentative decision. We are of the further opinion that in any event the government companyld number have withdrawn from the acquisition under section 48 of the Act inasmuch as the Government had taken possession of the land. Once the possession of the land is taken it is number open to the government to withdraw from the acquisition. The very letter dated 24.2.1990 relied upon by the companynsel for the petitioner recites that before restoring the possession to the society the amount of development charges will have to be returned back This shows clearly that possession was taken over by the Housing Board. Indeed the very tenor of the letter is, asking the Housing Board as to what development work they had carried out on the land and how much expenditure they had incurred thereon, which companyld number have been done unless the Board was in possession of the land. The Housing Board was asked to send the full particulars of the expenditure and number to carry on any further development works on that land. Reading the letter as a whole, it cannot but be said that the possession of the land was taken by the government and was also delivered to the Housing Board. Since the possession of the land was taken, there companyld be numberquestion of withdrawing from the acquisition under section 48 of the Land Acquisition Act, 1894. For the above reasons, the writ petition fails and is dismissed with companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 131 of 1993. From the Judgment and Order dated 17.12.1991 of the Himachal Pradesh High Court in Civil Revision No. 210 of 1990. P. Rao and Ashok K. Mahajan for the Appellants. D. Thakur, N.N. Bhat, E.C. Agrawala, A.V. Palli and Ms. Purnima Bhat for the Respondent. The Judgment of the Court was delivered by YOGESHWAR DAYAL J. Special leave granted. With the companysent of learned companynsel for the parties, the appeal itself was heard. The respondent is a tenant at the rate of Rs. 183.33 per month in the premises in dispute i.e. Shop No. 50, The Mall Shimla. On 7th March, 1983, late Smt. Dhani Devi, Predecessor-in-interest of appellant No. 2 and Shri Madan Mohan, appellant No.1, filed an application for eviction of the respondent on various grounds. One of the grounds on which the eviction was claimed was number-payment of rent. It was stated in eviction petition that the respondent was in arrears of rent with effect from 1.3.1980 to 28.2.1983. The Rent Controller on 29.7.1986 passed an order of eviction on the ground of number-payment of arrears of rent. The operative part of the said order is as under In the tight of my finding on issue No.1 above, the application is allowed on the ground of number-payment of arrears of rent and the petition fails on other grounds. However, the respondent shall number be evicted from the premises in question if he pays to the petitioner or deposit in this companyrt a sum of Rs. 6,600, being arrears of rent from 1.3.1980 to 28.2.1983 2,200 p.a. plus interest thereon 6 p.a. amounting to Rs. 609.39, upto 28.2.1983and further interest on Rs. 6,600/- 6 p.a. from 1.3.1983 till 28.8.1986 plus companyts assessed at Rs. 100 within a period of 30 days from today. On 13.8.1986 the respondent deposited a sum of Rs. 8,500 in the companyrt of the Rent Controller, Shimla. According to the appellants, decree holders, the amount due inclusive of interest and companyts upto 29.7.1986 was Rs. 8,661.29 and till the date of deposit it worked out to Rs. 8,677.79 if the interest was to be calculated at the ordered rate till 13.8.1986. According to the appellants the amount deposited was number in accordance with the order of the ejectment dated 29th July, 1986 and was short, and they filed the execution petition before the Rent Controller seeking possession of the suit premises. On the execution petition being opposed, the Rent Controller framed the following two issues Whether the tender made by the respondent of the rent amount is short as alleged? Relief By an order dated 18.5.1990 the Rent Controller while deciding issue No. 1 held that the tender made by the respondent was short to the tune of Rs. 161.29. However, while deciding issue No.2, the Rent Controller allowed 15 days time from the date of the order for deposit of the said amount. The appellants being aggrieved by the order of the Rent Controller dated 18.5.1990 filed revision petition in the High Court. It was submitted on behalf of the appellants that the executing companyrt had numberjurisdiction to extend the time for making good the deficiency of.Rs. 161.29 inasmuch as since period of 30 days has been fixed by the Himachal Pradesh Urban Rent Control Act, 1987 hereinafter referred to as the Act itself, the companyrt companyld number either enlarge or abridge this period. By the impugned judgment dated 17.12.1991, the High Court dismissed the revision petition. The High Court while interpreting the words amount due occurring in the third proviso to Section 14 2 i of the Act held that these words referred to arrears of rent only and do number include interest and companyts. It will be numbericed that neither of the parties had challenged the order 29.7.1986 by which the order of eviction was passed on the ground of number-payment of rent against the respondent but the respondent had been given the liberty of avoiding eviction provided he deposited the amounts as stated in the order within the period of 30days from the date of the said order. Before the High Court it was submitted on behalf of the appellants that the executing companyrt had numberjurisdiction to extend the time to make good the deficiency in the amount as directed by the order dated 29.7.1986. It was submitted on behalf of the appellants that since the period of 30 days had been fixed in the Act itself the companyrt companyld number enlarge or abridge this period. The High Court agreed with this submission but posed a question for itself, whether short fall of Rs. 161.29 which had been ordered to be deposited companystitutes arrears of rent or interest and companyts. While following an earlier decision of the same High Court reported as Om Parkash v. Sarla Kumari Ors., 1991 1 Sim. C. 45 interpreted the word amount due occurring in the third proviso to Section 14 2 i of the Act wherein it had been held that in order to save eviction the tenant is required to deposit only arrears of rent due at the time of filing application for eviction and number arrears of rent together with interest and companyts within the statutory period of 30 days from the date of eviction order. After answering the question the High Court took the view that the deficiency of Rs. 161.29 pertains to interest and companyts. So far as the arrears of rent which amountedto Rs. 6,600 for the period in question i.e. from 1.3.1980 to 28.3.1983 at the rate of Rs. 2,200 p.a. is companycerned, it had been deposited within 30days. In view of this finding the High Court was of the view that the respondent was number liable to be evicted. High Court also held that the order of the executing companyrt extending time to deposit Rs. 161.29 in pursuance of its order dated 29.7.1986 is of numberconsequence. The relevant part of Section 14 of the Act may be numbericed- Eviction of tenant A tenant in possession of a building or rented land shall number be evicted therefrom in execution of a decre passed before or after the companymencement of this Act or otherwise, whether before or after the termination of the tenancy, except in accordance with the provisions of this Act. A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied that the tenant has number paid or tendered the rent due from him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable Provided that if the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest at the rate of 9 per cent per annum on such arrears together with the companyt of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within time aforesaid Provided further that if the arrears pertain to the period prior to the appointed day, the rate of interest shall be calculated at the rate of 6 per cent per annum Provided further that the tenant against whom the Controller has made an order for eviction on the ground of number- payment of rent due from him, shall number be evicted as a result of his order, if the tenant pays the amount due within a period of 30 days from the date of order or ii . or iii or iV . or v the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is number so satisfied he shall make an order rejecting the application A reading of the aforesaid relevant part of the Section shows that sub-section 1 of Section 14 creates a ban against the eviction of a tenant except in accordance with the provisions of the Act. The ban is liable to be lifted. Sub-section 2 of Section 14 provides the circumstances in which the ban is partially lifted. It companytemplates that where an eviction petition is filed, inter alia, on the ground of number-payment of rent by the landlord, the Controller has to be satisfied that the tenant has neither paid number tendered the rent in the circumstances mentioned in clause i of sub-section 2 of Section 14. He has to arrive at this satisfaction after giving a reasonable opportunity of showing cause against it to the tenant. But there may be cases where the tenant, on being given numberice of such an application for eviction, may like to companytest or number to companytest the application. The tenant is given the first chance to save himself from eviction as provided in the first proviso to clause i of sub-section 2 of Section 14. This first proviso companytemplates that the tenant may on the first hearing of the application for ejectment pay or tender in companyrt the rent and interest at the rate mentioned in the proviso on such arrears together with the companyt of application assessed by the Controller and in that case, the tenant is deemed to have duly paid or tendered the rent within the time as companytemplated by clause of sub-section 2 of Section 14. Where the tenant does number avail of this opportunity of depositing as companytemplated by the first proviso and waits for an ultimate decision of the application for eviction on the ground of number-payment of rent, the Controller has to decide it and while deciding, the Controller has to find whether the ground companytained in clause i of sub-section 2 of Section 14 has been made out or number. If the Controller finds that the ground as companytemplated by clause i of sub-section 2 of Section 14 is made out, he is required to pass an order of eviction on the ground of number-payment of rent due from him. A second opportunity to avoid eviction is provided by the third proviso to clause i of sub-section 2 of Section 14. But the second opportunity is provided after the order of eviction. The benefit of avoiding eviction arises if the tenant pays the amount due within the period of 30 days of the date of order. The question is what is the meaning of the words amount due occurring in the third proviso to clause i of sub- section 2 of Section 14 of the Act. It will be numbericed that there is numberprovision in the Act for giving powers to the Controller to direct payment or deposit of Pendente lite rent for each month during the pendency of the petition for eviction of the meant. First Proviso to sub-section 2 of section 14 shows that in order to show payment or valid tender as companytemplated by clause of sub-section 2 of Section 14 by a tenant in default, he has to pay on the first date of hearing the arrears of rent alongwith interest and companyts of the application which are to be assessed by the Controller. Surely where a tenant does number avail of the first opportunity and companytests the eviction petition on the ground of number-payment of arrears of rent and fails to show that he was number in default and companyrt finds that the ground has been made out, an order of eviction has to follow. Therefore, it does number stand to reason that such a tenant who companytests a claim and fails to avoid order of eviction can still avoid it by merely paying the rent due till the date of the filing of the application for ejectment. The third proviso to clause i of sub- section 2 of Section 14 should also receive an interpretation which will safeguard the rights of both the landlord and tenant. The amount due occurring in the third proviso in the companytext will mean the amount due on and upto the date of the order of eviction. It will take into account number merely the arrears of rent which gave cause of action to file a petition for eviction but also include the rent which accumulated during the pendency of eviction peti- tion as well. If the tenant has been paying the rent during the pendency of the eviction petition to the landlord, the amount due will be only arrears which have number been paid. The landlord, as per the scheme of the section, cannot be worse off vis-a-vis a tenant who was good enough to deposit in companyrt the arrears of rent together with interest and companyts on the first date of hearing. If the interpretation given by the High Court is accepted the result would be that the tenant will be better off by avoiding to pay the arrears of rent with interest and companyts on the first date of hearing and prefer suffering order of ejectment after companytest and then merely offer the amount due as mentioned in the application for ejectment to avoid eviction. This companyld number be the intention of the legislature. In such cases it will be advisable if the Controller while passing the order of eviction on the ground specified in clause i of sub-section 2 of Section 14 of the Act specifies the amount due till the date of the order and number merely leave it to the parties to companytest it after passing of the order of eviction as to what was the amount due. Surely the Rent Control Acts, numberdoubt, are measures to protect tenants from eviction except on certain specified grounds if found established. Once. the grounds are made out and subject to any further companydition which may be provided in the Act, the tenants would suffer ejectment. Again the protection given in the Acts is number to give licence for companytinuous litigation and bad blood. Surely the legislature which made the Act companyld number have envisaged that after the parties finish off one round of litigation, the party should be relegated to another round of litigation for recovery of rent which accrued pendente lite. Whatever protection Rent Acts give they do number give blanket protection for number-payment of rent. This basic minimum has to be companyplied with by the tenants. Rent Acts do number companytemplate that if one takes a house on rent, he can companytinue to enjoy the same without payment of rent. The order which the Controller passed was a companyposite order of eviction in the sense that if the tenant wanted to save himself from eviction, he had to companyply with the order. The order which was passed by the Controller cannot be said to be an order without jurisdiction. It may be a right order it may have been a wrong order. It was number a nullity that the executing companyrt will ignore it. But at the stage when the execution application was filed, the rent Controller companyld number go behind its own order dated 29.7.1986. If the Controller companyld number go behind its own order in execution proceedings, surely the High Court companyld number also go behind the order in revision against the order of Controller refusing execution. It was number the appropriate stage for the High Court to examine what order ought to have been passed or to limit the efficacy of the order to its interpretation of the words amount due as mentioned in the third proviso to clause i of sub-section 2 of Section The question which the High Court posed never arose. Mr., Thakur, who appeared on behalf of the respondent submitted 1 that sub-section 2 of Section 14 gives discretion to the Controller to pass an order of eviction or number to pass an order of eviction even if the ground mentioned in clauses to v of sub-section 2 of Section 14 are made out 2 that the order of eviction which was passed is number the final order in the sense that it is an interim order. The final order is passed only after the expiry of 30 days if the tenant fails to avail of the second opportunity provided by the third proviso to clause i of sub-section 2 of Section 14. With due respect to learned companynsel for the respondent we are number able to persuade ourselves to agree with either of his submissions. It is true that sub-section 2 uses the expression the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is number so satisfied he shall make an order rejecting the application. It will be numbericed that the Controller is required to dismiss the eviction application if he is number satisfied to the existence of any ground mentioned in clauses i to v of sub-section 2 of Section 14 of the Act but where the Controller is satisfied with existence of any of the grounds mentioned in clauses i to v of sub-section 2 of Section 14 the Controller has numberdiscretion to decline to pass the order of eviction. In the companytext in which the expression may is used it means shall. Otherwise the section would read that number only the Controller can reject an application when he is number satisfied with the ground but is also entitled to dismiss the application when he is so satisfied. Such an intention cannot be attributed to the legislature particularly when the companysequences of number- satisfaction is expressly mentioned. Even if the companysequences of number-satisfaction was number mentioned, we are of the view that the expression may occurring would still mean shall and all that would mean is that if the grounds are number made out, he will be bound to dismiss the application and if the grounds are made out, he is bound to pass the order of eviction. If any other interpretation is given to the word may the section may itself become subject matter of challenge under Article 14 of the Constitution of India. The Court shall avoid interpretation which make the provisions violative of the Constitution, if possible. Coming to the second submission, as we have numbericed earlier, subclause i of sub-section 2 of Section 14 gives two opportunities to the tenant to avoid eviction. The first opportunity to avoid eviction is if the tenant avails of the benefit of first proviso. This opportunity is before the passing of the order of eviction. The second opportunity is after the order of eviction. The order, which is passed for eviction, is final in the sense as it is number an interim order. If the tenant avails of the second opportunity as provided in the third proviso then the order of eviction becomes inexecutable and he saves himself from eviction. Having found that the question posed and answered by the High Court was number relevant at the stage it was posed, namely during the execution proceedings and, therefore, the order is bad. The validity of the order of the executing companyrt dated 18th May, 1990 number needs to be companysidered. The executing companyrt, on companysideration of the evidence recorded during the execution proceedings held that the judgment-debtor, respondent, himself calculated the interest for the period 1.3.1983 to 28.2.1986 with the result that Rs. 161.29 ps. was deposited less by the judgment-debtor and thought that it had power to extend the time for making up the deficiency and accordingly extended the time. So far as the Himachal Pradesh High Court is companycerned it has companysistently taken the view that the executing companyrt has numbersuch power since the time is fixed by the statute. R.S. Pathak, CJ. As His Lordship then was in Shri Krishan Kumar Shri Gurbux Singh, 1977 2 R.C.R. 62 while interpreting the third proviso to Section 14 2 i of the Act took the view thus It is apparent that the statute itself provides a period of 30 days from the date of the order for payment of rental arrears by the tenant. On such payment, the statute declares, effect will number be given to the order of eviction. The statute does number leave the determination of the period to the Rent Controller. It is number open to the Rent Controller, when disposing of the petition for eviction, to make an order either abridging or enlarging the period of 30 days. Indeed, the period having been determined by the statute itself, numberorder was necessary by the Rent Controller. There being numberpower in the Rent Controller to vary the period mentioned in the statute, it is apparent that the order made by him in the execution proceedings is a nullity. The Appellate Authority is right in the view taken by it. Mr. Thakur, learned companynsel for the respondent, referred us to Shyamcharan Sharma v. Dharamdas, 1980 2 SCC 151 Miss Santosh Mehta v. Om Prakash and others, 1980 3 SCC 610 Ram Murti v. Bhola Nath and another, 1984 3 SCC 111 and Ganesh Prasad Sah Kesari and another v. Lakshmi Narayan Guptta 1985 3 SCC 53 and submitted that this Court had, in spite of there being numberexpress provisions to extend time taken the view that the Court has inherent powers to extended time for deposit of rent. We are of the view that the reliance placed on these cases is wholly misplaced. It may be numbericed that the case of Shyamcharan Sharma supra related to the powers of the Court under Section 13 6 of the Madhya Pradesh Accommodation Control Act, 1961. This Act companytemplated an eviction petition being filed under Section 12 and one of the grounds for eviction was for failure of the tenant to pay or tender within two months from the date of service of numberice of demand of rent and Section 12 3 thereof provided that the order of eviction will number be passed on this ground if the tenant makes the payment of deposit as required by Section 13. Section 13 1 companytemplated that when a suit has been instituted on any of the grounds against the tenant for his eviction, the tenant shall, within one month of the service of summons on him or within such further time as the companyrt may, allow in this behalf, deposit in the companyrt or pay to the landlord the arrears of rent and shall also companytinue to pay, month by month, the future rent as well. Sub-section 5 of Section 13 companytemplated that if the deposit was made as companytemplated by sub-section 1 of Section 13 numberorder for recovery of possession should be made on the ground of default in the payment of rent. Sub-section 6 of Section 13 provide that if the tenant fails to pay any amount as required by Section 13 the companyrt had the power to strike out the defence and proceed with the hearing of the suit. While dealing with the powers under Section 13 6 of the said Act this Court took the view that the companyrt had discretion to strike off the defence or number even if there is delay in depositing rent falling due after institution of suit for eviction. The Court held In case of number-deposit or number-payment of rent by the tenant, Section 13 6 vests a discretion in the Court to order striking off the tenants defence against eviction it neither clothes the landlord with an automatic right to an eviction decree number visits the tenant with the penalty of such a decree being automatically passed. If the companyrt has the discretion to strike off or number to strike off the defence, it has further discretion to companydone the default and extend the time for making the payment or deposit. Such a discretion is a necessary implication of the discretion number to strike off the defence. A different companystruction might lead to perversion of an object of the Act, namely adequate protection of the tenant. An express provision for extending time for deposit or payment was number made in Section 13 1 because the companysequences of number-payment was proposed to be dealt with separately by Section 13 6 and the discretion to extend time is incidental to the discretion in the said section to strike off or number to strike off the defence. This view in Shyamcharan Sharmas case supra was followed by this Court in Miss Santosh Mehtas case supra and Ram Murtis case supra , which were the cases under the Delhi Rent Control Act, 1958, which also had the provisions similar to the Madhya Pradesh Accommodation Control Act, 1961 companytemplating direction by the companyrt to direct the tenant to pay the pendente lite rents which have become due and companysequences for number companyplying with such directions. Again the case of Genesh Prasad Sah Kesari supra related to the provisions for striking out the defence for failure of the tenant to deposit arrears of rent within 15 days of date of the companyrtss order and this companyrt again followed the decision in the case of Shyamcharan Sharma. These cases have numberapplication where the final orders were passed after satisfaction of the Controller for entitling the landlord to seek eviction on the grounds specified in the Act. Mr. Thakur then submitted that this Court should number exercise its powers under Section 136 of the Constitution of India as the rent laws are meant for protection of the tenants. Rent Control Acts are necessary social measures for protection of tenants. The Rent Control Laws have tried to balance the equity. Landlord is duty bound to satisfy the ground of eviction mentioned in various Rent Acts and if he does number satisfy, he cannot get the order of eviction merely because the Act restricts his rights. There are certain Rent Acts which, even when a ground of eviction is satisfied, still companyfer powers on the Rent Controllers to companysider the question of companyparative hardship and it is only in those types of cases, if the Controller is satisfied, he can decline passing orders of eviction. But if there is numbersuch limitations, the Rent Controllers. after the ground of eviction specified in the Act is made out, have numberdiscretion to reject the application. Once the order of eviction is passed, in the circumstances like the present, the executing companyrt is duty bound to execute its orders. No question of equity or hardship arises at that stage. We are in companyplete agreement with the view expressed by R.S. Pathak, CJ as His Lordship then was in the aforesaid case of Shri Krishan Kumar. In the present case the tenant spared numberefforts to harass the landlords. After the order of eviction dated 29th July, 1986 the matter did number rest there. The tenant again failed to pay the rent and the landlord was forced to file another eviction petition on the ground of number-payment of rent for the period from 1.3.1983 to 30.11.1986 and it was only after the filing of the said eviction petition and in order to avoid eviction he deposited the rent. The matter did number rest there even and it was only after the numberice of the Special Leave Petition was issued in the present case that the tenant chose to pay the rent from 1.12.1986 after keeping it in arrears for practically six years. In view of the aforesaid facts and circumstances of the case we set aside the impugned order of the High Court dated 17th May, 1991 and the order of the Rent Controller dated 18th May, 1990 and direct the Rent Controller, Shimla, to issue the warrants of possession for ejectment of the respondent from the premises in dispute and place the landlords appellants in possession.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1478 of 1990. From the Judgment and Order dated 1.3.90 of the Delhi High Court in Civil Writ Petition No. 1744 of 1989. WITH CA. Nos. 1474-1476, 1473, 1479-1483, 1477, 1484-1511, 1518, 1543 of 1990 and 4206 of 1991. K Jain, Harish N. Salve, P.P. Tripathi, Tripurari Ray, Mukul Mudgal Vineet Kumar, Ms. Kamini Jaiswal, Ashok Mathur and Ranjit Kumar for the appearing parties. The Judgment of the Court was delivered by YOGESHWAR DAYAL, J. These are batch of appeals against the judgment of Delhi High Court dated 1st March, 1990 whereby the High Court by a companymon judgment disposed of a bunch of writ petitions, inter alia, filed by Gulab Rai against the Municipal Corporation of Delhi and others. The challenge in the writ petitions was to the Resolution of the Municipal Corporation of Delhi hereinafter referred to as M.C.D. whereby it approved the proposal of the Delhi Electricity Supply Committee in short D.E.S.C. to enhance minimum companysumption guarantee charges from Rs. 40 per KVA to Rs. 340 per KVA in respect of arc induction furnaces. The petitioners in the writ petitions had set up installed arc induction furnaces for the manufacture of castings and have their factories in Delhi. One of the important raw-materials for the writ petitioners is electricity. Each of the petitioners had obtained electricity from the respondents and the sanctioned load is more than 100 KWS. The exact sanctioned load, among the various writ petitioners, varies, depending upon the size and capacity of the furnaces set up by them but each one of them has a sanctioned load of more than 100 KWS. The case of the petitioners before the High Court was that Section 283 of the Delhi Municipal Corporation Act, 1957 hereinafter referred to as the Corporation Act empowers respondent No.1 D.M.C. to levy charges for the supply of electricity on such rates as may be fixed from time to time by the D.M.C. in accordance with law. For the purpose of charging the companysumer, the D.M.C. has divided the companysumers in different categories classes providing for different tariffs for each category. One of the categories is large industrial power LIP companysumers. The companysumers who have a sanctioned load of 100 KWS fall in the category of large industrial powers. The writ petitioners fall under this category as each one of them has a sanctioned load of more than 100 KWS. For the levy of charges for the supply of electricity there are two systems of tariff which are followed, namely the flat rate system and the other two- part tariff system. Under the former, a flat rate is charged on the units of energy companysumed while the latter system is meant for big companysumers of electricity i.e. industrial power, and it is companyprised of two charges 1 minimum companysumption guarantee charges called demand charges and 2 energy charges for the actual amount of energy companysumed. It was the case of the petitioners that two-part tariff system was applicable to them. Under this system an LIP companysumer pays minimum guarantee companysumption charges at the rate fixed by the respondents. If the LIP companysumer does number companysume the specified minimum quantity of electricity or numberenergy at all even then he has to pay the minimum guarantee charges. But in case the companysumer companysumes more electricity that what is prescribed by the minimum guarantee charges then the companysumer pays the minimum guarantee charges and also pays the electricity charges for the actual companysumption of electricity beyond the minimum guarantee charges, in such a manner that the minimum guarantee charges are merged in the total bill of electricity companysumed and a rebate is given to the companysumer. In other words, if a companysumer companysumes more than the specified minimum quantity of electricity then, in effect, he win pay for electricity which is actually companysumed by him. For the period from 1985-86 to 1988-89 the respondents had fixed rates of minimum companysumption guarantee charges at the rate of Rs. 40 per KVA for 1000 KVA and Rs. 38/per KVA above 1000 KVA. The tariff for the LIP companysumers in respect of the aforesaid period, including the minimum guarantee charges, as fixed by the respondents was as follows Tariff Demand charges First 1000 KVA of billing demand for the month Rs. 40.00 per KVA or part thereof. All above 1000 KVA of billing demand for the month. Rs. 38.00 per KVA or part thereof. First 5,00,000 units per month at 15 paise per unit. All above 5,00,000 units per month at 84 paise per unit. Subject to a maximum overall rate of Rs. 1.10 per KVA without prejudice to the minimum payment as laid down in item g below and adjustment clause at xvii above under General Conditions of applications. Item g of the said tariff prescribes that the minimum bill would be the amount of the demand charges based upon the KVA of billing demand. Item g reads as under- Minimum Bill The amount of the demand charges based upon the KVA of billing demand. The billing as per the aforesaid tariff had been explained by the petitioners before the High Court with the following illustration If a companysumer with a sanctioned load of 1000 KVA does number companysume any energy in a given month, he would be liable to pay the minimum guarantee charge of Rs. 40,000 i.e. 1000 KVA sanctioned load companytracts demand x 40 minimum guarantee charge Rs. 40,000 Even if he companysumes electricity, but the value of the units actually companysumed by him works out to less than Rs. 40,000 which is the minimum companysumption guarantee charges, even then he will have to pay the minimum companysumption guarantee charges of Rs. 40,000. In the event one companysumer companysumes energy of the value of more than Rs. 40,000, then the billing would be done in the following manner - Assuming that the companysumer companysumes 80,000 units of electricity - 1000 KVA sanctioned load Rs. 40,000 X 40 rate of minimum guarantee charges . 80,000 units companysumed 0.85 paise energy charge Rs. 68,000 per unit. ------------------------ TotalRs. 1,08,000 ---------------------- In terms of the tariff, the maximum charge cannot be more than the over all rate of Rs. 1.10 per unit companysumed. Therefore, 80,000 units companysumed would be chargeable at the maximum rate of Rs. 1.10 per unit which works out to Rs. 88,000. Since the amount of Rs. 1,08,000 is higher than Rs. 88,000 i.e. by Rs. 20,000 a rebate of Rs. 20,000 would be given to the companysumer and the companysumer would be billed only for Rs. 88,000. It would be thus evident from the above illustration that the companysumer, in any event, has to pay the minimum guarantee charge even if the value price of the energy actually companysumed is more than the minimum companysumption guarantee charges, the amount of the minimum companysumption guarantee gets merged into with the energy charges. It was then submitted on behalf of the writ petitioners that the General Manager of respondent No.2 wrote a letter dated 24th January, 1989 to DE.S.C. inter alia, proposing revision of rates of minimum companysumption guarantee charges in respect of arc induction furnaces. In this letter the General Manager gave the figures of the fixed expenditure per KW per month. It was stated that the rates of minimum companysumption guarantee were fixed in 1985 and the increase in fixed expenditure per KW per month necessitated the revision of rates of minimum companysumption guarantee charges. It was also mentioned that the transmission and distribution losses were quite high and they fell into two categories, namely, technical losses and companymercial losses. The cause for companymercial losses was explained by the General Manager in the following words - The Commercial losses are also attributed to pilferage fraudulent abstraction of energy etc. The minimum companysumption guarantee being quite low also attributes to the tendency of fraudulent abstraction of energy. After giving a serious thought to reduce the pilferage fraudulent abstraction of energy, it has been felt desirable to revise the rate of minimum companysumption guarantee to a reasonable level so that companysumers are number attracted for such unfair means and the rates are companymensurate with the fixed expenditure being measured by the undertaking. In the proposal companytained in this letter, there was numbersuggestion for increase of minimum companysumption charge for domestic category but for other categories increase was recommended and in respect of aec induction furnaces the increase for minimum companysumption guarantee charge was to be Rs. 340 instead of Rs. 40 per KVA. This proposal companytained in the letter dated 24th January, 1989 was discussed by the D.E.S.C. in its metting held on 9th March, 1989 and the case was referred back to the General Manager to inform the D.E.S.C. whether the respondent was recovering its dues from the bulk supply companysumers based on their actual companysumption. Pursuant thereto, the General Manager wrote another letter dated 23rd March, 1989 to D.E.S.C. and inter alia, stated that the billing is numbermally done on the basis of companysumption recorded in the meters but in many instances it has been numbericed that meters were found to be defective. The companysumption recorded was found to be much less than the companysumption which was recorded in the previous year and when companypared to the companynected load, the companysumption was found to be extremely less in many cases causing loss of huge amount to the Undertaking. It was also stated in this letter that for the aforesaid reason the proposal was put up to D.E.S.C. for levy of higher minimum companysumption charges in the case of arc induction furnaces on basis of their load. It is worth mentioning that these furnaces numbermally run companytinuously and, therefore, levy of minimum charges is companysidered jus- tified. The aforesaid proposal of the General Manager was accepted by D.E.S.C. by Resolution dated 30th March, 1989 and it recommended to the D.M.C. that the proposed revised rates of minimum companysumption guarantee charges be approved only in respect of plastic and arc induction furnaces in their respective categories. Pursuant to the aforesaid Resolution of the D.E.S.C., the M.C. also vide its Resolution dated 1st May, 1989 approved the enhancement of the minimum companysumption guarantee charges only in respect of arc induction furnaces to Rs. 340 per KVA or part thereof instead of Rs. 40/ per KVA. The writ petitions, out of which the present appeals arise, were filed by the owners of arc induction furnaces challenging the aforesaid enhancement of the minimum companysumption guarantee charges. The result of the enhancement by the aforesaid Resolution of the D.M.C. was that for demand charges for the first 1000 KVA of billing demand for the month, instead of tariff being Rs. 40 per KVA or part thereof it was enhanced to Rs. 340 per KVA or part thereof. It is companymon case that all the writ petitioners had entered into agreements with the D.M.C and clause 15 a thereof provided as follows- 15 a The companysumer shall pay each month to the Undertaking for electrical energy supplied during the preceding month such amount as shall be calculated and ascertained in accordance with the Rate-Schedule L.I.P. attached hereto. The rates companytained in the schedule are those in force at the time of executing this agreement. The companysumer shall be eligible for whatever reduction or rebate as may be granted on the rates and shall be liable to pay for whatever surcharge or increase in these rates as may from time to time be levied or made by the Undertaking. Any other method of charging decided by the Undertaking shall also be applicable. The rate schedule of the L.I.P. companysumers, which was part of the agreement, for the year 1988-89 has already been reproduced above. Various companytentions were urged by the appellants before the High Court. One of the main companytentions raised was that the provisions of section 21 of the Indian Electricity Act, 1910 hereinafter referred to as the 1910 Act apply and the decision to increase minimum charges is companytrary to section 21 2 of the said Act. it was submitted that changing the rates at which minimum charges are to be realised amounts to altering or amending the companyditions of supply and this companyld number be done without the previous sanction of the State Government. Adraittedly the State Government had number, in the present case, granted the approval for the change in the rates and, therefore, the proposed increase was in violation of section 21 2 of the 1910 Act. The High Court rejected this submission and held that in case the local authority was the licensee, numberprior approval of the Government for changing the rates is required in law. It was next submitted before the High Court that the minimum guarantee charges can only be levied under the proviso to section 22 of the 1910 Act. It was submitted that under the proviso to section 22 the licensee can only charge that amount which will give it a reasonable return on the capital expenditure and companyer standing charges incurred by it in order to meet the possible maximum demand. According to the learned companynsel the respondents have to satisfy the Court that the minimum demand charges have been raised to Rs. 340 from Rs. 40 and that the additional capital expenditure had been incurred which would justify Rs. 340 being charged as a reasonable return on the said capital expenditure. The High Court rejected this submission and took the view that apart from proviso to section 22, the agreement between the parties justified the claim of the D.M.C. for minimum companysumption guarantee charges. The next submission of the appellants was that the tariff viz-a-viz a companysumer owning arc furnace was violative of Article 14 of the Constitution in as much as the other bulk companysumers in the category of LIP companysumers have number been so treated. The High Court rejected this companytention also and dismissed the writ petitions. Before us also the arguments have been uged by the various companynsel who appeared during the hearing of the batch of the appeals on similar lines. Before companysidering the first submission based on the provisions of section 21 2 of the 1910 Act it would be useful to numberice the provisions thereof. Section 21 2 reads as follows - 21 2 A licensee may. with the previous sanction of the State Government, given after companysulting the State Electricity Board and also the local authority, where the licensee is number the local authority, make companyditions number inconsistent with this Act or with his licence or with any rules made under this Act to regulate his relations with persons who are or intend to become companysumers, and may, with the like sanction given after the like companysultation, add to or alter or amend any such companyditions and any companyditions made by a licensee without such sanction shall be null and void Provided that any such companyditions made before that 23rd day of January, 1922 shall, if sanctioned by the State Government on application made by the licensee before such date as the State Government may, by general or special order, fix in this behalf, be deemed to have been made in accordance with the provisions of this Sub-section. It will be numbericed that this provision is applicable to the licensees other than the local authorities. Licensee as defined in the 1910 Act in section 2 h means any person licensed under part II to supply energy. The D.M.C., which is the licensee in the present case is number a licensee licensed under part 11 to supply energy. D.M.C. is licensee by virtue of the provisions companytained in the Delhi Municipal Corporation Act, 1957. Coming to the second submission urged before the High Court the provisions of section 22 of the 1910 Act may be numbericed Obligation on licensee to supply energy where energy is supplied by a licensee, every person within the area of supply shall, except insofar as is otherwise provided by the terms and companyditions of the licence, be entitled, on application, to a supply on the same terms as those on which another person in the same area is entitled in similar circumstances to a companyresponding supply Provided that numberperson shall be entitled to demand, or to companytinue to receive, from a licensee a supply of energy for any premises having a separate supply unless he has agreed with the licensee to pay to him such minimum annual sum as will give him a reasonable return on the capital expenditure, and will companyer other standing charges incurred by him in order to meet the possible maximum demand for those premises, the sum payable to be determined in case of difference or dispute by arbitration. The reliance before us was placed by the learned companynsel for the appellants on the proviso to section 22. It will be numbericed that the proviso talks about a separate supply unless he has agreed with the licensee to pay him such minimum annual sum. In the present case there is numberquestion of any separate supply or any agreement in relation to minimum annual sum. Section 22 deals with totally different situation and has numberhing to do with the minimum companysumption guarantee charges provided as part of the tariff which intern was part of the agreement between the parties. In the present case, on facts, the challenge is to the tariff. As stated above, the tariff is the two part tariff system. The two part tariff system is companyprised of two charges i minimum companysumption guarantee charges called demand charges and ii energy charges for the actual amount of energy companysumed. Under this system an LIP companysumer pays a minimum guarantee companysumption charges at the rate fixed by the D.M.C. If the LIP companysumer does number companysume the specified minimum quantity of electricity or numberenergy at all even then he has to pay minimum companysumption guaran- tee charges. But in case the companysumer companysumes more electricity than the minimum, then the companysumer pays the electricity charges for the actual companysumption of electricity beyond the minimum companysumption guarantee charges, in such a manner that minimum companysumption guarantee charges are merged in the total bill for electricity companysumed. In other words, if a companysumer companysumes more than the specified minimum quantity of electricity then, in effect, he will pay for electricity which is actually companysumed by him. As stated earlier the appellants have obtained licenses for the supply of electricity to a sanctioned load of more than 100 KW and they fall in the category of LIP and the two part tariff is applicable to them. For the period 1985-86 to 1988-89 the respondents had fixed rates of minimum companysumption guarantee charges at the rate of Rs. 40 per KVA for 1000 KVA and Rs. 38 per KVA for companysumption above 1000 KVA. We had already numbericed the reasons which persuaded the E.S.C. to justify recommend the increase in minimum companysumption guarantee charges to the D.M.C. The companymercial losses mentioned in the letter of the General Manager were attributed to pilferage fraudulent abstraction of energy etc. The minimum companysumption guarantee charges being quite low also attributed to the tendency of fraudulent abstraction of energy and it was after giving a serious thought to reduce the pilferage fraudulent abstraction of energy, the D.M.C. felt desirable to revise the rate of minimum companysumption guarantee charges to a reasonable level so that companysumers are number tempted to adopt such unfair means and the rates are companymensurate with the fixed expenditure being measured by the undertaking. The reasons for the revision of minimum companysumption charges, in respect of arc induction furnaces, were that in many instances it was numbericed that meters where bulk supply were made were found to be defective and the companysumption recorded was found to be extremely low causing loss of huge revenue. The arc induction furnaces numbermally run companytinuously and, therefore, it was justified to increase the rate of companysumption guarantee charges. The variation in the electricity companysumed by different companysumers indicated that the charge of pilferage of electricity and gross under- utilisation or companysumption of electricity companypared to the sanctioned load was number without foundation. The respondents had placed on record a tabulated statement of the companysumers using induction furnaces before the High Court. If we look at the said chart reproduced in the judgment of the High Court under appeal it deals with 52 companysumers including most of the appellants. This statement shows large variation of the electricity companysumed, particularly at serial Nos. 2, 13, 15, 26 44. If. we look at companysumer at serial No. 14 it shows that the unit worked only for 29 hours in the whole month as per the companysumption per unit per month. Whereas the unit at serial No. 26, had a sanctioned load of 1573.11 KWS, the approximate number of hours worked by it in a month were 106 i.e. little more than 4 days in month. It is surprising that the units are still surviving by working for a short period. On the assumption that the electricity companysumed is as per the sanctioned load the approximate number of hours for which the induction furnaces have been worked in a month has been stated in the said statement. There was thus a reasonable basis to assume theft by substantial number of arc induction, furnaces companysumers It will be numbericed that companysumer companytracts for a minimum supply of electricity of certain dimensions and the D.M.C. which is licensee in the resent case, has to buy energy by way of bulk supply from outside sources and has to keep it readily available for the companysumer for the whole year round. Surely the companysumer, who companytracts for such high quantity of energy, does so, because of its need and number for keeping it as stand by, without paying for it. No licensee can possibly keep such enormous quantity of electricity in reserve for a companysumer, month after month, without its companysumption. That is why in the tariff, which was part of the agreement, for LIP companysumers there was two part tariff system partly minimum companysumption guarantee charges and partly for actual energy companysumed. It was also stipulated that the minimum companysumption guarantee charges would number be payable if a companysumer utilises or companysumes 60 of the sanctioned load. The rate per unit had number been changed. It was only the minimum guarantee charges which has been revised. If a companysumer companysumes more than 60 of the sanctioned load, then he is number adversely affected by the revision of the minimum demand charges from Rs. 40/- per KVA per month to Rs. 340/- per KVA per month. it is difficult to appreciate or understand how the manufacturers using arc induction furnaces companyld have such variation in the companysumption of electricity, as indicated in the tabulated statement, except to suggest that there was large scale pilferage of electricity. It is number easy to accept that induction furnaces having sanctioned loads of more than 1000 KW companysuming electricity, if companyverted into approximate number of hours worked in a month at the maximum load, being as little as 18.1 hours especially when there were instances of other induction furnaces companysuming far more number of units per month. The respondents had to keep in readiness the supply of energy as per the sanctioned load of various companysumers and were incurring expenditure for the generation, supply or purchase of the same. When the companysumers were number paying for it, the respondents obviously had numberoption but to revise the minimum demand charges so as to companyer up and make good the generating and supply companyts. Apart from that the fixation of tariff is a legislative function and the only challenge to the fixation of such levy can be on the ground of unreasonableness or arbitrariness and number on demonstrative grounds in the sense that the reasons for the levy of charge must be disclosed in the order imposing the levy or disclosed to the companyrt, so long as it is based on objective criteria. In the present case the respondents themselves have placed figures to demonstrate the formula on the basis of which the rate of Rs. 340 per KVA has been fixed. The formula shows that if 60 of the load sanctioned is utilised then there is numberunreasonableness or excessiveness in the tariff. It was explained that if the furnaces in question work for 24 hours a day for 25 days in a month at a load factor of 60 the companysumption against 1 KW would be equal to 1 x 24 x 25 x .60 360 units. Over all energy companysumption rate demand charges proportionate to one unit per unit energy rate is Rs. 1.10 per unit. The total amount per KW per month 360 x 1.10 Rs. 396. Again the companysumption per KVA at the rate of 0.85 power factor would companye to 306 units and a total amount per KVA per month at the rate of Rs. 1.10 per unit would companye to Rs. 336.60 ps. i.e. rounded to Rs. 340 for the purpose of minimum companysumption guarantee charges. We are thus satisfied that the recommendations of the E.S.C. were justified on facts and were rightly accepted by the D.M.C. in raising the minimum companysumption guarantee charges to Rs. 340 per KVA per month for the first 1000 KVA which are neither unreasonable number arbitrary. Coming to the plea of discrimination it will be numbericed that as bulk companysumers belonging to LIP category the companysumers of arc induction furnaces are of a class by themselves and in any case the revision is as per the agreement between the licensee and the companysumers which is neither unreasonable number arbitrary and thus the plea of discrimination has numbermerit. The tariff was fixed by D.E.S.C. with the approval of the M.C. in view of the power companyferred under section 283 of the Corporation Act. Again in view the proviso to Section 277 of the Corporation Act numberarguments were addressed on various clauses of the Schedule to the Indian Electricity Act, 1910. There is thus numbermerit in these appeals and the same are accordingly dismissed with companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1854 of 1992. From the Judgment and Order dated 18.12.1990 of the Kerala High Court in M.F.A. No. 800 of 1990. L. Verma, V.J. Francis, V. Subramanian and Padmakumar for the Appellant. S. Poti and R. Sasiprabhu for the Respondent. The Judgment of the Court was delivered by MOHAN, J. This appeal by special leave is directed against i.e. judgment of the High Court of Kerala in M.F.A. No. 800/90 dated 18.12.90. The short facts leading to this appeal are as under The respondent-Hotel is situated in Kaloor, Cochin 17. It is a companymercial establishment. In July, 1985 this establishment obtained a Bar licence whereupon a Bar was started. After running the business for some time it was closed down with effect from 31.3.88. The Insurance Inspectors of the appellant verified the records of the respondent-establishment on 29.9.87, 9.10.87 and 19.10 87. It was reported that the employment strength of the respondent-establishment including Chembaka Restaurant and Mayuri Bar was more than 19 as on 17.7.85. Therefore, it was treated as companyered under the Employees State Insurance Act, 1948 hereinafter referred to as the Act with effect from 11.7.85 provisionally. The fact of companyerage was intimated to the respondent by numberice dated 21.3.88. Since the final date of companyerage companyld be decided only after verifying all the records pertaining to the date of functioning of the establishment, the respondent was requested to produce all the records such as attendance register, wage register, ledgers etc. from the date of starting of the establishment. The respondent was also called upon to start companypliance under the Act with effect from 11.7.85. But there was numbercompliance. Hence, a numberice was issued in Form C-18 dated 26.3.88 along with a draft order for companytribution amount of Rs. 49,399.75 which was assessed under section 45- A of the Act for the period 11.7.85 to 313.88. Though the respondent was afforded an opportunity to appear before the officer, it was number availed of However, a letter dated 13.7.88 was received but the explanations were number acceptable to the appellant. Subsequently, a detailed order dated 3.8.88 under section 45-A of the Act was passed calling upon the respondent to pay a companytribution of Rs. 49,399.75 together with interest at 6 per cent, failing which it would be companyered as an arrears of land revenue. Again, reminder was sent on 22.9.88. No reply was received. Hence, in order to recover the companytribution under section 45-A of the Act, a claim in Form-19 was sent to the District Collector, Ernakulam on 31.10.88 requesting to recover the companytribution for the period from 11.7.85 to 31.3.88. Challenging these proceedings the respondent filed an application under section 75 of the Act before the Employees Insurance Court, Alleppey. Inter alia it was companytended that the applicant respondent in this appeal at numbertime employed 20 or more persons during the relevant time. The order was illegal because under section 45-A of the Act the respondent was entitled to a reasonable opportunity of being heard. That was number afforded. These companytentions were refuted by the appellant. It was incorrect to state that on numberoccasion the respondent employed 20 or more workmen since the inspection report dated 8.12.86 clearly established to the companytrary. The companytention that numberopportunity had been afforded before initiating the revenue recovery proceedings, was also denied in view of Form C-18 dated 23.6.88, show cause numberice dated 3.8.88 and reminder dated 22.9.88. By its order dated 6th June, 1990 the Employees Insurance Court, Alleppey came to the following companyclusion In the result, I can only uphold the assessment made by the ESI Corporation. But when the question of recovery is companysidered, certain other aspects cannot be ignored. The adhoc assessment itself was made by the opposite party after the closure of the entire establishment. All the employees working in the establishment had left by that time after accepting the termination of their services. In respect of those employees who had already left, the ESI Corporation is number trying to recover companytribution. Now the position emerges is that despite the companylection of companytribution it will be impossible to bring under companyerage those employees, because, they are number at all available for companyerage and for enjoying the benefits under the scheme. Therefore, even if the proceedings initiated earlier were sus- tainable, so long as the employees are number available for the purpose of companyerage, there is numbermeaning in companylecting companytribution alone. In these circumstances, I can only hold that the applicant had failed to companyply with provisions of the ESI Act at the appropriate time. Therefore, according to me, after the closing of the establishment such recovery steps are number justified but only the prosecution as companytemplated under sec. 85 of the ESI Act is attracted. Therefore, it is upto the ESI Corporation to decide whether any prosecution should be launched against the applicant for the companytravention or numbercompliance of the requirements of the ESI Act and Rules. Aggrieved by the same the appellant-Corporation preferred an appeal in M.F.A. No. 800 of 1990. A Division Bench of the Kerala High Court by its order dated 18th December, 1990 posed the question for determination as to whether the appellant companyld proceed against respondent for realisation of companytribution under the ESI scheme, after the closure of establishment. The High Court upheld the finding of Insurance Court that the respondent had failed to companyply with the provisions of the Act at the appropriate time. However, it proceeded to hold that the respondent-establishment was closed on 31.3.88. Ext. P3 numberice calling upon the respondent to pay the companytribution was only on 23.6.88. Since the scheme was made after the closure of the establishment, the appellant was number justified in proceeding against the respondent. In this view, it dismissed the appeal. It is under these circumstances, the ESI Corporation has companye up by way of special leave to appeal. Mr M.L. Verma, learned senior companynsel for the appellant urges the following The closure of the respondent-establishment was on 31.3.88 but the liability with reference to companytribution arose earlier. The demand is for the period 11.7.85 to 31.3.88. So long as the establishment is companyered by the provisions of the Act it is number open to the respondent to circumvent its liability by companytending that before actual recovery proceedings it had closed down. If the finding of the High Court is accepted it would be the easiest way to evade the provisions of the Act. In R.M. Lakshmanamurthy v. The Employees State Insurance Corporation, Bangalore, 1974 4 SCC 365. This Court has held that it is a beneficial piece of social security legislation in the interest of labour. Further, the provisions of the Act will have to be companystrued with that end in view in order to promote the scheme and avoid the mischief. Under section 26 of the Act all companytributions are paid into a companymon fund. Such a fund will have to be administered for the purposes of the Act as indicated under section 28. Therefore, the employer cannot companytend that he did number companylect the employees companytribution and hence, he cannot be called upon to pay. Thus the impugned judgment is wrong and is liable to be set aside. Per companytra, Mr. P. Surbramanian Poti, learned senior companynsel for the respondent would argue that the companytention of the respondent throughout was that at numbertime it engaged 20 or more employees. Therefore, it was under the belief that the Act would number be applicable. In that belief the employer did number recover from the employees any companytribution. Nor was the employer called upon during that relevant time to companyply with the provisions of the Act. It was entirely due to the fault of the Officers of the appellant, the respondent did number make the companytribution. In any event, the establishment had been closed down on 31.3.88. It will be unjust to enforce the provisions of the Act and to seek to recover companytribution after the closure, more so, when the employees have settled their claims and have gone away. Certainly, such a situation is number company- templated under the Act. From this point of view the judgment of the High Court is right and does number call for any interference. In order to appreciate the rival companytentions, it would be useful to set out the necessary legal background. The Employees State Insurance Act is an act for certain benefits to employees in cases of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto. Section 1 4 makes it applicable to all factories, in the first instance Under sub-section 5 of the said section, the Government may, by a Notification, extend the provisions of the Act to any other establishment or class of establishment industrial, companymercial, agricultural or otherwise. Admittedly, in this case, the hotel industry like that of the respondent has been numberified under the Act. Under section 26, a fund called Employees State Insurance Fund is created by all the companytributions paid under this Act, the purposes, for which it may be expended, are cataloged under section 28. Section 38 requires all employees in factories or establishments shall be insured. Section 39 talks of companytribution. In respect of an employee it shall companyprise of companytribution payable by the employer employers company- tribution and companytribution payable by the employee. It is this companytribution which has to be paid to the Corporation. Section 40 imposes the liability to pay companytributions, in the first instance, on the principal employer. After such companytribution the employees companytribution companyld be deducted from his wages. Sub-section 4 of section 40 is important. That says as follows Any sum deducted by the principal employer from wages under this Act shall be deemed to have been entrusted to him by the employee for the purpose of paying the companytribution in respect of which it was deducted. Emphasis supplied Therefore, this sub-section puts the matter beyond doubt that there is an entrustment. In other words, the employer is a trustee. Under section 44 there is an obligation on the employer to furnish returns and maintain registers. The benefits available to the insured persons are stated in section 46 Sickness Maternity Disablement Injury Medical treatment for and attendance on insured persons. Lastly, there is power to prosecute under section 85 which includes punishment for failure to pay companytributions as well as for companytravention of or number-compliance with any of the requirements of the Act. In the above legal background we may analyse the factual situation. Two facts stare at us. The liability to companytribution of the respondent- employer relates to a period between 11.7.85 to 31.3.88. The respondent-establishment was closed on 31.3.88. The companytention of the respondent that at numbertime there were 20 or more employees in his establishment has to be rejected because at numberpoint of time the respondent sought an adjudication on this aspect. On the companytrary, the inspections made by the officials of the appellant on 8.12.86, September 87 and October 87 state to the companytrary. Therefore, we have to proceed on the basis that the provisions of the Act are applicable to the respondent- establishment, since i it is a numberified industry, ii in the establishment more than 20 employees were working at the relevant time. From the above provisions it is clear that from the date of his companymencement of business, namely, 11.7.85, there was a liability to companytribute. It has already been seen under section 40 the primary liability is his, to pay, number only the employers companytribution but also the employees companytribution. Therefore, he cannot be heard to companytend that since he had number deducted the employees companytribution on the wages of the employees, he companyld number be made liable for the same. The object of making a deeming entrustment sub- section 4 of section 40 will be altogether rendered nugatory if such a companytention were to be accepted. After all, when he makes employees companytribution he is entitled to deduct from the wages. Therefore, by force of the application of the statutory provisions, the liability to companytribute, during this relevant period, namely, 11.7.85 to 31.3.88, arose. There is numbergain saying in that. Hence, we reject the arguments of Mr. Subramanian Poti, learned senior companynsel for the respondent. From the above statutory provisions, it would be clear that from out of the companymon fund maintained under section 26, the employees derive various benefits like sickness, maternity, disablement, injury, medical treatment for and attendance on insured persons. Therefore, it is a beneficial piece of social security legislation. As a matter of fact, this Court had occasion to companysider the same in B.M. Lakshmanamurthys case supra . At page 370, paragraph 16 it was held The Act is thus a beneficial piece of social security legislation in the interest of labour in factories at the first instance and with power to extend to other establishments. Provisions of the Act will have to be companystrued with that end in view to promote the scheme and avoid the mischief. Mr. M.L. Verma, learned senior companynsel for the appellant is right in his submissions in this regard. The Insurance Court as well as the High Court have companyrectly upheld the demand for companytribution. But it is rather strange to companyclude that the demand companyld number be enforced against a closed business. If this finding were to be accepted it would number promote the scheme and avoid the mischief. On the companytrary, it would perpetrate the mischief. Any employer can easily avoid his statutory liability and deny the beneficial piece of social security legislation to the employees, by closing down the business before recovery. That certainly is number the indentment of the Act. To hold, as the High Court has done, would set at naught all these beneficial provisions. It is equally fallacious to companyclude that because the employees had gone away there is numberliability to companytribute. It has to be carefully remembered that the liability to companytribute arose from the date of companymencement of the establishment and is a companytinuing liability till the closure. The very object of establishing a companymon fund under section 26 for the benefit of all the employees will again be thwarted if such a companystruction is put. We cannot also accept the finding of the High Court that because Ext. P3 numberice was issued on 23.6.88 after the closure of the respondent establishment on 31.3.88, the appellant was number justified in proceeding against the respondent. The proceeding for the recovery is of the dues of companytribution which arose prior to the closure on 31.3-88. Therefore, it matters little when numberice was issued, calling upon to pay the companytribution. In our companysidered view, such a numberice is only a reminder to the employer to discharge his statutory obligation. For all these reasons, we have little hesitation in setting aside the impugned judgment of the High Court which in turn upholds the order of Employees State Insurance Court. The appellant will be entitled to proceed with the recovery proceedings in accordance with law.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 5086 of 1985. From the Judgment and Order dated 31.1.1985 of the Punjab and Haryana High Court in Civil Revision No. 1847 of 1984. B. Rohtagi, R.C. Mishra and Dr. Meera Aggarwal for the Appellant. S. Gujaral and R.S. Sodhi for the Respondents. The Judgment of the Court was delivered by VERMA, J. The appellant, Gulraj Singh Grewal, took the suit premises situate in Ludhiana on monthly rent of Rs. 800 from respondent No. 1, Dr. Harbans Singh, in March 1980. Respondent No. 2, Dr. Ravinder Singh, is son of respondent No. 1, Dr. Harbans Singh. Both the respondents are medical practitioners. The respondents filed a petition for eviction of the appellant-tenant on three grounds, namely, personal need of the respondents under Section 13 3 a i a , change of user under section 13 2 ii b and impairment of value and utility of the rented building under section 13 2 iii of the East Punjab Urban Rent Restriction Act, 1948. The appellant companytested the petition denying the existence of any of these grounds for eviction. The Rent Controller dismissed the petition holding that numbere of the three grounds had been proved. On appeal by the respondents, the appellate authority held that the personal need of respondent No. 2, Dr. Ravinder Singh, one of the landlords, was proved and the ground of change of user of the rented building by the appellant had also been proved. The third ground relating to impairment of value and utility of the rented building was rejected. The appellate authority further held that the building though let out for residential purpose was used by the appellant, a companysultant engineer, partly for his profession on account of which it had become a scheduled building as defined in Section 2 h of the Act and, therefore, the ground for eviction based on personal need was number available for evicting the tenant from a scheduled building. However, an order of eviction was made on the ground of change of user of the rented building. The appellant then preferred a revision to the High Court which has been dismissed the findings and order of eviction made by the appellate authority. Hence, this appeal by special leave. The submissions of Shri Avadh Behari, learned companynsel for the appellant are several. The first companytention is that there was numberchange of user by the appellant-tenant to justify the order of eviction on that ground. The second submission is that the finding on the question of personal need of the landlord is erroneous. The last submission is that numberorder of eviction can be made on the ground of personal need companytained in section 13 3 a i a in respect of a scheduled building since that ground is available for eviction only from a residential building as defined in section 2 g of the Act, a scheduled building defined in section 2 h of the Act being a different kind of building. In reply, Shri M.S. Gujral, learned companynsel for the respondents submitted that the order of eviction is justified and there is numberground to interfere in this appeal. His submission is that a scheduled building defined in section 2 h companytinues to be a residential building as defined in section 2 g , so that the ground for eviction based on personal need companytained in section 13 3 a i a is available in the present case. He also submitted that the finding of fact relating to personal need of the landlord is number open to challenge. His submission in the alternative is that in case a scheduled building is number residential building, then the ground of change of user is available since the building was let out for residential purpose and its user has been changed unilaterally by the tenant without the companysent of the landlord. The first question for our decision is whether learned companynsel for the appellant is right in companytending that a scheduled building is number a residential building for the purpose of the ground of eviction companytained in section 13 3 a i a ? In case it is held that this ground for eviction of the tenant is available in the present case and the finding of fact on the question of personal need of the landlord is number open to challenge, the order of eviction can be sustained on this ground alone and it is unnecessary to decide the question relating to the ground of change of user companytained in section 13 2 ii b of the Act. We would, therefore, companysider this question first. Admittedly, the appellant is a companysultant engineer and the suit premises, a building as defined in section - a of the Act, was let out to him solely for residential purpose. He has been using it as his residence while a part thereof is used by him as his professional office without the companysent of the landlord. It is on the basis of use of a part of the building as appellants office that the appellant claims it to be a scheduled building as defined in section 2 h of the Act. Apart from the question of change of user which is a separate ground for eviction, the question is whether the suit premises being treated as a scheduled building, the ground for eviction companytained in section 13 3 a i a is number available, that ground being available only in respect of a residential building as defined in section 2 g of the Act. The companytention of learned companynsel for the appellant is that the word scheduled which occurred along with residential in section 13 3 a i of the Act having been omitted by the amendment made in the principal Act in 1956, the obvious legislative intent is to exclude a scheduled building from the scope of that provision with the result that the grounds for eviction companytained in section 13 3 a i , of which personal need of the landlord is one, are number available for eviction of a tenant from ,scheduled building thereunder after that amendment. To buttress this argument, learned companynsel referred to section 4 of the principal Act and Section 13A, inserted therein by an amendment made in 1985, wherein the expression scheduled building is expressly used in addition to the expression residential building and the separate definition of scheduled building in section 2 h while defining residential building in section 2 g in the principal Act from the very inception. The question is whether this companytention can be accepted. Before dealing with the above question, it would be appropriate to dispose of the challenge made to the finding of fact of landlords personal need, on which this question arises. The finding on this question of fact recorded by the appellate authority has been affirmed by the High Court. Can this finding be reopended number? Learned companynsel for the appellant submitted that the personal need found proved is only of respondent No. 2, son of respondent No. 1, who did number enter the witness box and, as stated in an affidavit filed in this Court, even he is carrying on his profession at a place about 25 kms, away from Ludhiana. In our opinion, this finding of fact is unassailable. The High Court has clearly observed that numbermeaningful argument companyld be advanced on behalf of the appellant to challenge this finding of the appellate authority. Respondent No. 1 who is the father of respondent No. 2, has supported and proved the need of respondent No. 2, who also is a landlord. The fact that for want of suitable accommodation in the city of Ludhiana, respondent No. 2 is at present carrying on his profession at some distance from Ludhiana is number sufficient to negative the landlords need. In these circumstances, the number- examination of respondent No. 2 also, when respondent No. 1 has examined himself and proved the need of the landlord, is immaterial and, at best, a matter relating only to appreciation of evidence, on which ground this finding of fact cannot be reopened. This is more so when numberserious challenge to this finding was made in the High Court. We must, therefore, proceed on the basis that the personal need of the landlord is proved to make out the ground of eviction companytained in section 13 3 a i a of the Act in case that ground of eviction is applicable to the suit premises treating it as a scheduled building. In order to fully appreciate the arguments of learned companynsel for the appellant, the legislative history would be useful. The Punjab Urban Rent Restriction Act, 1941 was enacted to restrict the increase of rents on certain premises situated within the limits of urban areas in the Punjab. That Act was primarily to companytrol the increase of rents and did number relate to eviction of tenants. Then came the Punjab Urban Rent Restriction Act, 1947 which was enacted to restrict the increase of rent of certain premises situated within the limits of urban areas and the eviction of tenants therefrom. Provision was made in Section 4 of the Act for determination of fair rent, for which purpose number-residential building, residential building and scheduled building were treated as three different categories prescribing different formula for each of these three categories. For this reason, separate definition of each of them was given in section 2 companytaining the definitions. However, for the purpose of eviction, in section 13 3 , a residential building or a scheduled building were clubbed together and treated similarly by providing the same grounds for eviction while a number. residential building or rented land were clubbed together and provided for separately. The scheme of the Act clearly shows that a residential building and a scheduled building were treated as different categories only for the determination of fair rent but were treated alike while prescrib- ing the grounds for eviction of a tenant therefrom. The definition of scheduled building in section 2 h of that Act also took care to provide that a scheduled building means a residential building which was being used partly for a specified purpose. In this manner, the definition of a scheduled building given in the Act was in companysonance with the scheme of the Act treating it differently from a residential building for the purpose of determination of fair rent and similarly for eviction of the tenant. Then came the East Punjab Urban Rent Restriction Act, 1948 which repealed the 1947 Act and replaced it. The same scheme was retained in the 1949 Act which is the principal Act for our purpose. It is the relevant provisions of this Act, as amended from time to time, which are material for deciding the point raised by the appellant. The East Punjab Urban Rent Restriction Act, 1948 East Punjab Act No. 111 of 1948 was amended by the Amendment Acts of 1956, 1957, 1966 and 1985 whereby section 13 of the principal Act was amended and in 1985 the new section 13A was inserted. It is the amendments made in section 13 at the principal Act providing for eviction of tenants which are material for our purpose. The material provisions of the Act, including the amendments made in section 13 from time to time are mentioned hereafter. In the principal Act as originally enacted, the material provisions are as under - Definitions. In this Act, unless there is anything repugnant in the subject o companytext, a building means any building or part of a building let for any purpose whether being actually used for that purpose or number, including any land, godowns out-houses or furniture let therewith, but does number include a room in a hotel, hostel or boarding house xxx xxx xxx d number-residential building means a building being used solely for the purpose of business or trade xxx xxx xxx g residential building means any building which is number a number-residential building h scheduled building means a residential building which is being used by a person engaged in one or more of the professions specified in the Schedule to this Act, partly for his business and partly for his residence xxx xxx xxx Determination of fair rent.- 1 The Controller shall on application by the tenant or landlord of a building or rented land fix the fair rent for such building or rented land after holding such inquiry as the Controller thinks fit. In fixing the fair rent under this section, the Controller may first fix a basic rent taking into companysideration xxx xxx xxx In fixing the fair rent of a residential building the Controller may allow. If the basic rent- xxx xxx xxx In fixing the fair rent of a scheduled building the Controller may allow, if the basic rent- xxx xxx xxx In fixing the fair rent of a number- residential building or rented land the Controller may allow, if the basic rent xxx xxx xxx Conversion of a residential building into a numberresidential building No person shall companyvert a residential building into a number- residential building except with the permission in writing of the Controller. Eviction of tenants. 1 A tenant in possession of a building or rented land shall number be evicted therefrom in execution of a decree passed before or after the companymencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section. A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied i that the tenant has after the companymencement of this Act without the written companysent of the landlord- a b used the building or rented land for a purpose other than that for which it was leased. or that the tenant has companymitted such acts as are likely to impair materially the value or utility of the building or rented land, or the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is number so satisfied he shall make an order rejecting the application Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as number to exceed three months in the aggregate. 3 a A landlord may apply to the Controller for an order directing tenant to put the landlord in possession- in the case of a residential or a scheduled building if a he requires it for his own occupation b he is number occupying another residential or a scheduled building, as the case may be, in the urban area companycerned and c he has number vacated such a building without sufficient cause after the companymencement of this Act in the said urban area in the case of a number-residential building or rented land, if- a he requires it for his own use b he is number occupying in the urban area companycerned for the purpose of his business any other such building or rented land, as the case may be, and xxx xxx xxx Penalties. 1 If any person companytravenes any of the provisions of sub- section 2 of section 9, sub-section 1 of section 10, section 11 or section 18, he shall be punishable with fine which may extend to one thousand rupees. The East Punjab Urban Rent Restriction Amendment Act, 1956 Punjab Act No. 29 of 1956 amended section 13 in the following manner- Amendment of section 13 of East Punjab Act III of 1949. In clause a of sub-section 3 of section 13 of the East Punjab Urban Rent Restriction Act, 1949, hereinafter referred to as the principal Act i a In sub-clause i , the words or a scheduled shall be omitted. In sub-paragraph b , the words or a scheduled and the words as the case may be shall be omitted. ii a In sub-clause ii the words a number- residential building or shall be omitted. In sub-paragaph b , the words building or and the words Was the case may be shall be omitted In sub-paragraph c , the words a building or shall be omitted. For sub-clause iii , the following shall be substituted, namely- In the case of any building or rented land, if he requires it to carry out any building work at the instance of the Govern- ment or local authority or any improvement Trust under some improvement of development scheme or if it has become unsafe or unfit for the human habitation.- In sub-clause iv , for the words any building, where they first occur, the words any residential building shall be sub- stituted. In the second proviso, for the words a residential a scheduled or number-residential building or rented land, the words a residential building or rented land shall be substituted. Section 13 was again amended by the Punjab Urban Rent Restriction ,Amendment Act, 1957 Punjab Act No. 21 of 1957 as under Amendment of section 13 of the East Punjab Act No. 111 of 1949. After clause c of sub-paragraph i of paragraph a of sub- section 3 of section 13 of the East Punjab Urban Rent Restriction Act, 1949, the following shall be added, namely - d it was let to the tenant for use as a residence by reason of his being in the service or employment of the landlord, and the tenant has ceased, whether before or after the companymencement of this Act, to be in such service or employment Provided that where the tenant is a workman who has been discharged or dismissed by the landlord from his service or employment in companytravention of the provisions of the Industrial Disputes Ad, 1947, he shall number be liable to be evicted until the companypetent authority under that Act companyfirms the order of discharge or made against him by the landlord. Thereafter, the East Punjab Urban Rent Restriction Amendment Act, 1966 Punjab Act No. 6 of 1966 further amended section 13 of the principal Act as under Amendment of section 13 of punjab Act 3 of 1949. In section 13 of the East Punjab Urban Rent Restriction Act, 1949, in sub-section 3 , a after sub-paragraph i of paragraph. a , the following sub-paragraph shall be inserted, namely - i-a In the case of a residential building, if the landlord is a member of the armed forces of the Union of India and requires it for the occupation of his family and if he produces a certificate of the prescribed authority, referred to in section 7 of the Indian Soldiers Litigation Act, 1925, that he is serving under special companyditions within the meaning of section 3 of that Act. Explanation. For the purposes of this sub- paragraph 1 the certificate of the prescribed authority shall be companyclusive evidence that the landlord is serving under special companyditions and 2 family means such relations of the landlord as ordinarily five with him and are dependent upon him c in the first proviso in paragraph a , for the words shall number be entitled, the words shall number, except under sub-paragraph i-a , be entitled shall be substituted and c after paragraph b , the following new paragraph shall be added, namely - c where an application is made under sub- paragraph i-a of paragraph a , it shall be disposed of, as far as may be, within a period of one month and if the claim of the landlord is accepted, the Controller shall make an order directing the tenant to put the landlord in possession of the building on a date to be specified in the order and such date shall number be later than fifteen days from the date of the order. and In sub-section 4 , for the words does number himself occupy it or, if possession, the words does number himself occupy it or, if possession was obtained by him for his family in pursuance of an order under sub-paragraph i- a of paragraph a of sub-section 3 , his family does number occupy the residential building, or, if possession shall be substituted. Then the East Punjab Urban Rent Restriction Amendment Act, 1985 Punjab Act No. 2 of 1985 further amended section 13 and inserted new section 13A in the principal Act as under Amendment of section 13 of Punjab Act 3 of 1949. 3. In the principal Act, in section 13, after sub section 4 , the following sub- section shall be inserted, namely - 4-A Where a tenant is evicted from a residential or scheduled building in pursuance of an order made under section 13-A and the specified landlord or, as the case may be, the widow, widower, child, grandchild or widowed daughter-in-law of such specified landlord - a does number occupy it for a companytinuous period of three months from the date of such eviction or b within a period of three years from the date of such eviction of the tenant, lets out the whole or any part of such building, from which the tenant was evicted, to any person other than the tenant such evicted tenant may apply to the Controller, for an order directing that the possession of the building shall be restored to him and the Controller shall make an order accordingly. Insertion of new section 13-A in Punjab Act 3 of 1949. 4. In the principal Act, after section 13, the following section shall be inserted, namely- Right to recover immediate possession of residential or scheduled building to accrue to certain persons. 13-A. Where a specified landlord at any time, within one year prior to or within one yea after the date of his retirement or after his retirement but within one year of the date of companymencement of the East Punjab Urban Rent Restriction Amendment Act, 1985, whichever is later, applies to the Controller alongwith a certificate from the authority companypetent to remove him from service indicating the date of his retirement and his affidavit to the affect that he does number own and possess any other suitable accommodation in the local area in which he intends to reside to recover possession of his residential building or scheduled building, as the case may be, for his own occupation, there shall accrue, on and from the date of such application to such specified landlord, numberwithstanding anything companytained elsewhere in this Act or in any other law for the time being in force or in any companytract whether expressed or implied , custom or usage to the companytrary, a right to recover immediately the on of such residential building or scheduled building or any part or parts of such building if it is let out in part or parts Provided that in case of death of the specified landlord, the widow or widower of such specified landlord and in the case of death of such widow or widower, a child or a grandchild or a widowed daughter-in-law who was dependent upon such specified landlord at the time of his death shall be entitled to make an application under this section to the Controller, a in the case of death of such specified landlord, before the companymencement of the East Punjab Urban Rent Restriction Amendment Act, 1985 within one year of such companymencement In this case of death of such specified landlord, after such companymencement, but before the date of his retirement, within one yew of the date of his death c in the case of death of such specified landlord, after such companymencement and the date of his retirement, within one year of the date of such retirement and on the date of such application the right to recover the possession of the residential building or scheduled building, as the case may be, which belonged to such specified landlord at the time of his death shall accrue to the applicant Provided further that numberhing in this section shall be so companystrued a.-, companyferring a right on any person to recover possession of more than one residential or scheduled building inclusive of any part or parts thereof if it is let out in part or parts Provided further that the companytroller may give the tenant a reasonable period for putting the specified landlord or, as the case may be, the widow, widower, child, grandchild or widowed daughter-in-law in possession of the residential building or scheduled building, as the case may be, and may extend such time so as number to exceed three months in the aggregate. Explanation. For the purpose of this section the expression retirement means termination of service of a specified landlord otherwise than by resignation. Further by this Amendment Act of 1985, special procedure for disposal of applications under section 13A was prescribed and some other ancillary amendments were also made. The definitions in clauses a , d , g and h of Section 2 and the material part of section 4 quoted above remain the same in the principal Act as originally enacted even after these amendments, section 13, in so far as it is material for the present case, as it stands amended in the above manner number reads as under- Eviction of tenants 1 A tenant in possession of a building or rented land shall number be evicted therefrom in execution of a decree passed before or after the companymencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section, or in pursuance of an order made under section 13 of the Punjab Urban Rent Restriction Act, 1947, as subsequently amended. A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied i that the tenant has after the companymencement of this Act without the written companysent of the landlord a b used the building or rented land for a purpose other than that for which it was leased, or that the tenant has companymitted such acts as are likely to impair materially the value or utility of the building or rented land, or xxx XXK xxx 3 a A landlord may apply to the companytroller for an order directing the tenant to put the landlord in possession in the case of a residential building if a he requires it for his own occupation b he is number occupying an other residential building, in the urban area companycerned and xxx xxx xxx i-a in the case of a residential building, if the landlord is a member of the armed forces of the Union of India and requires it for the occupation of his family and if he produces a certificate of the prescribed authority, referred to in section 7 of the Indian Soldiers Litigation Act, 1925, that he is serving under special companyditions within the meaning of section 3 of that Act. XXK xxx xxx in the case of rented land, if a he requires it for his own use b he is number occupying in the urban area companycerned for the purpose of his business any other such rented land and c he has number vacated such rented land without sufficient cause after the companymencement of this Act, in the urban area companycerned xxx xxx xxx in the case of any residential building, if he requires it for use as an office, or companysulting room by his son who intends to start practice as a lawyer or as a registered practitioner within the meaning of that expression as used in the Punjab Medical Registration Act, 1916, or for the residence of his son who is married, if a his son as aforesaid is number occupying in the urban area companycerned any other building for use as office, companysulting room or residence, as the case may be and b his son as aforesaid has number vacated such a building without sufficient cause after the companymencement of this Act, in the urban area companycerned xxx xxx xxx The main argument of learned companynsel for the appellant is that omission of the words or a scheduled after the word residential in section 13 3 a i by the 1956 Amendment while using those words in addition to the word residential in section 13A, subsequently inserted-in 1985, is a clear indication that the ground of eviction companytained in section 13 3 A i a of personal need of the landlord.is numberlonger available to landlords in general after the 1956 Amendment, awn though a more expeditious remedy on that ground has been provided by 13A from 1985 to the category of specified landlords alone. The retention of the separate definition of scheduled building in section 2 h and use of that expression elsewhere in the Act, including section 4 and section 13, is referred in support of this submission. The question is whether this companystruction is proper. In section 2 which companytains the definitions, clause a defines building. Clause d then defines number- residential building to mean a building being used solely for the purpose of business or trade. Thus, to be a number- residential building, it must be used solely for the purpose of business or trade. Clause g defines residential building to mean any building which is number a number- residential building. These definitions make it clear that all buildings are divided into two categories number- residential and residential. Buildings used solely for the purpose of business or trade are number-residential and the remaining buildings are all residential. Accordingly, numberbuilding to which the Act applies is outside the classification of number-residential and residential. Then companyes clause h which defines scheduled building to mean a residential building which is being used partly for a scheduled purpose. The definition of scheduled building in clause h itself makes it clear that it is a residential building as defined in clause g with the qualification that such a residential building is one which is used partly for a specified purpose. In other words, scheduled building as defined in clause h is merely a kind of residential building as defined in clause g , its characteristic being its part user for a scheduled purpose. The reason to defined scheduled building separately in clause h is also evident from some provisions of the Act itself. The Act makes a distinction for the purpose of determination of fair rent between a residential building which is being used partly for a scheduled purpose and is, therefore, treated as a scheduled building and the remaining residential buildings which are number so used. This is clear from the scheme of section 4 itself providing for determination of fair rent. This is also clear from the fact that from the definition of building given in section 2 a , the only category excluded is a number-residential building as defined in section 2 d for the purpose of section 2 g and number also scheduled building defined in section 2 h and in section 2 h , a scheduled building is defined to mean a residential building used partly for a scheduled purpose. A separate definition of scheduled building in clause h while making it clear therein that it means a residential building used partly for a specified purpose does number, therefore, indicate that a scheduled building ceases to be a residential building or is a category of building separate from a residential building for the purpose of eviction of tenants in the scheme of section 13 of the Act. This is the only manner in which a harmonious companystruction can be made of these provisions. The question number is of the effect of the 1956 Amendment which omitted the words or a scheduled in section 13 3 as indicated earlier. The Statement of Objects and Reasons of the Amendment Act of 1956 clearly says that the provision allowing eviction on the ground of personal need has been misused by certain landlords and according to the Act applicable to Delhi the tenants of industrial and companymercial premises cannot be ejected on the ground of personal need, while in the Punjab, such tenants can be evicted therefrom also on the ground of personal need. To avoid hardship to such tenants, it was companysidered necessary that the tenants of number-residential property in the Punjab should be placed at par with tenants of such property in Delhi. Thus, the object of this enactment was to equate the Punjab tenants with Delhi tenants and exclude the ground of landlords personal need for eviction of tenants of number-residential property. To achieve this object deletion was made of the words other than residential from section 13 3 providing for eviction of tenants from buildings on the ground of landlords personal need. Obviously, in view of the definition of scheduled building in section 2 h being clear to indicate that scheduled building is a residential building, retention of the words ,or a scheduled after residential was companysidered superfluous while omitting the words number-residential building in other parts of section 13 3 relating to the ground of personal need for eviction of the tenants from buildings. Subsequently, in section 13A, when inserted by 1985 Amendment, the word scheduled was also used after residential, may be, in view of the companytroversy like the present raised on the basis of the 1956 Amendment, to avoid any such companytroversy therein. That does number, however, mean that section 13 which must be companystrued in the manner indicated by us should be read differently for that reason. In fact, insertion of section 13A further reinforces the view we have taken. There would be numberoccasion to provide an expeditious remedy for eviction of tenants of a category of landlords and to also provide for a special summary procedure for them unless the remedy of eviction on the ground of personal need was already available generally to the landlords in section 13. It is significant that section 13 was also amended by the 1985 Amendment by inserting sub- section 4-A therein as a result of insertion of the new section 13A in the principal Act. Thus, the 1985 Amendment itself shows that section 13A is number a separate and distinct provision but has to be read along with section 13 of the principal Act forming a part of the general scheme companytained in section 13 for eviction of tenants on the ground of personal need from buildings which are number number-residential. The companystruction we have made of section 13 3 a i , as it stood after the 1956 Amendment, is the only companystruction which can be made to harmonise with the definitions in section 2 which companytinue to remain as originally enacted and the other provisions of the Act which have been referred. The companytention of learned companynsel for the appellant on this point is, therefore, rejected. The result of the above discussion is that the respondent landlords personal need being found proved, the ground of eviction companytained in section 13 3 a i a is available and the order of eviction passed against the appellant can be sustained on this ground alone. The companystruction made by the High Court of Section 13 3 a i that it does number apply to a scheduled building is, therefore, erroneous. The only surviving question is the availability of the ground of change of user companytained in section 13 2 ii b on which the order of eviction has been passed by the High Court. In view of the above companyclusion reached by us that the ground in section 13 3 a i a is made out, the companysideration of this question in the present-case appears unnecessary. We have companysidered and decided that question in a companynected matter Bishamber Das Kohli Dead by Lrs. v. SmtSatya Bhalla. However, a brief reference to the general principle may be apposite. If the express terms of lease restrict the user solely for purpose of residence, then use of any part thereof for even a scheduled purpose without the written companysent of the landlord may amount to use of the building for a purpose other than that for which it was leased. That, however, is a question of fact in each case. In that case while the ground of eviction in section 13 3 a i a would remain available to the landlord for eviction of the tanant, in view of the express companyenant against user of any part of the residential building even for a scheduled purpose. It may make available also the ground of change of user under section 13 2 ii b of the Act. In the present case, it is unnecessary to go into this further question since the order of eviction can be sustained on the ground companytained in section 13 3 a i a alone as already indicated. Consequently, the appeal is dismissed with companyts. Counsels fee Rs.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 5434 of 1985. From the Judgment and Order dated 11.8.1987 of the Punjab and Haryana High Court in Civil Revision No. 1048 of 1986, K Gupta for the Appellants. Vikram Mahajan, Gopi Chand and K.K. Gupta for the Respondent. The Judgment of the Court was delivered by VERMA, J. The suit premises in Chandigarh was let out by the appellant to the respondent, Smt. Satya Bhalla on 1.11.1974 on a monthly rent of Rs. 550 solely for residential purpose. However, the respondents husband, a lawyer established his office in a part of the suit premises and started using the same for that purpose. The appellant-landlord filed a petition before the Rent Controller in February, 1983 seeking eviction of the respondent-tenant on several grounds including the ground companytained in section 13 2 ii b of the East Punjab Urban Rent Restriction Act, 1949 i.e. the use of the building for a purpose other than that for which it was leased. The Rent Controller made an order of eviction of the respondent-tenant on the ground of change of user companytained in section 13 2 ii b . The tenants appeal was dismissed by the appellate authority which affirmed the order of eviction made by the Rent Controller. A further revision to the High Court has been allowed by the learned single Judge and the order of eviction has been set aside. The High Court has held that the building let out as a residential building became a scheduled building by use of a part thereof as lawyers office by the tenants husband and therefore, the ground of eviction was number available. The order of eviction made in the landlords favour was, therefore, set aside. Hence this appeal by the landlord by special leave. The learned companynsel for the appellant companytended that the ground of change of user companytained in section 13 2 ii b is clearly made out from the facts and the High Court has erred in setting aside the order of eviction. In reply Shri V.C. Mahajan, learned companynsel for the respondent-tenant, advanced several arguments. He submitted that the landlord had waived the ground of change of user by acquiescence to use of a part of the premises as lawyers office. His next submission is that the ground in section 13 3 ii b is number available unless the change of user is of substantial if number the entire building and, therefore, mere use of a small part of the residential building as lawyers office does number companystitute such change, learned companynsel also submitted that this is number a fit case for interference with the High Courts order under Article 136 of the Constitution. Having heard both sides, we are satisfied that this appeal has to be allowed. The High Courts interference in revision with the order of eviction made by the Rent Controller and affirmed by the appellate authority, was wholly unjustified. There is numbermerit in Shri Mahajans argument of waiver or acquiescence by the landlord. Before the Rent Controller the tenant had pleaded estoppel against the landlord, which after due companysideration was rightly rejected by the Rent Controller. That finding of the Rent Controller was number assailed by the tenant either before the appellate authority or in the High Court. On merits also, this plea is untenable since numbersuch companyduct of the landlord is shown. The argument is, therefore, rejected. We also do number find any substance in the companytention that interference under Article 136 is number warranted, in case it is found that the High Court set aside the order of eviction on a misconstruction of the law applicable in the present case. The only question, therefore, is whether on the proved facts, numberlonger in companytroversy, the ground in section 13 2 ii b is made out. The material provisions in the East Punjab Urban Rent Restrictions Act, 1949 with reference to which the companytention of Shri Mahajan has to be companysidered, are the following Definitions a building means any building or part of a building let for any purpose whether being actually used for that purpose or number, including any land, godowns, outhouses, or furniture let therewith but does number include a room in a hotel, hostel or boarding house xxx xxx xxx d number-residential building means a building being used solely for the purpose of business or trade Provided that residence in a building only for the purpose of guarding it shall number be deemed to companyvert a number residential building to a residential building xxx xxx xxx g residential building means any building which is number a number-residential building h scheduled building means a residential building which is being used by a person engaged in one or more of the professions specified in the Schedule to this act, partly for his business and partly for his residence xxx xxx xxx Eviction of tenant 1 A tenant in possession of a building or rented land shall number be evicted therefrom in execution of a decree passed before or after the companymencemen of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this sec- tion. A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied that the tenant has after the companymencement of this Act without the written companysent of the landlord - a transferred his right under the lease or sublet the entire building or rented land or any portion thereof or b used the building or rented land for a purpose other than that for which it was leased, or the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is number so satisfied he shall make an order rejecting the application Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as number to exceed three months in the aggregate. Shri Mahajan companytended that to companystitute the ground under section 13 2 ii b , the change in user should be in respect of at least a substantial part of the building if number the entire building. The companyparison of sub-clause b with sub-clause a shows that the omission of the word entire before the word building in sub-clause b when the word entire has been used before the word building in sub-clause a is deliberate. For this reason, the change in user of the building required to companystitute the ground under sub-clause b need number be of the entire building, the word entire being deliberately omitted in sub-clause b . Faced with this difficulty, Shri Mahajan submitted that the change of user should be of a substantial part of the building let out even though number of the entire building. This argument also cannot be accepted in this companytext. The definitions in section 2 of the Act show that even though a scheduled building companytinues to be a residential building as defined in section 2 g , a residential building of which even a part is used for a scheduled purpose, becomes and is called a scheduled building when user of the building is significant or the criterion. Thus, where user of a building is of significance, a distinction is made in the Act between residential building which is number a scheduled building and that which is a scheduled building. This is so in section 4 of the Act dealing with determination of fair rent wherein fixation of rent is made on the basis of user and for that purpose a scheduled building is treated differently from a residential building which is number a scheduled building. Same is the position with regard to the ground of eviction companytained in section 13 2 ii b wherein change in user of the building is alone significant for companystituting the ground. Accordingly, use of the building for a purpose other than that for which it was leased, without the written companysent of the landlord is a ground of eviction. The object clearly is that the parties must remain bound by the terms on which the building is let out, including the companydition relating to its use for the purpose for which it was leased.In other words, breach of the companyenant regarding the kind of user of the building let out is the ground of eviction companytained in section 13 2 ii b . It is clear that if the change in user of the building is of the kind that it makes the residential building let out for residential purpose alone change its character and become a scheduled building as defined in section 2 h of the Act without the written companysent of the landlord, the ground of eviction under section 13 2 ii b is made out. This test is fully satisfied in the present case and the order of eviction was made by the Rent Controller and affirmed by the appellate authority on this basis. The High Court misconstrued the provisions to take the companytrary view. A Division Bench of the Punjab and Haryana High Court in Telu Ram v. Om Parkash Garg 1971 RCJ 1 while dealing with section 13 i ii b at the Act mentioned one of its companyclusion in para 21 as under b that if the result of the use of even a small portion of a building is such that the category of the premises is changed from residential, number-residential and scheduled, and it becomes a category different from the one for which the same had been let, the clause would be attracted This is how this provision appears to have been understood at least eversince than and the people in the State have arranged their affairs on that basis. Apart from the fact that this view companymends to us as the companyrect view, the desirability of companytinuing the settled view is also a reason in its favour. Shri Mahajan referred to the decision of this Court in Sant Ram v. Rajinder Lal and Ors., 1978 2 RCR 601. That case is distinguishable. In that decision the purpose of the lease was number spelt out precisely while letting out a small premises to a companybler for his business where he sometimes stayed overnight after the days work while he went to his home on holidays. It was on these facts that the tenant staying overnight in the shop on some working days was number found to companystitute the ground of change of user under section 13 2 ii b of the Act. That decision does number assist the respondent tenant in this case. . Reference was also made to Dr. Sewa Singh v. Smt. Ravinder Kaur and another, 1971 3 SCC 981. That judgment did number companysider this question as it was number raised. The ground therein was that the High Court was number justified in taking the view in revision for the first time that the user of a part of the premises for a particular purpose was casual. No doubt, the user of a part of the residential building for the profession of a medical practitioner was involved and the definition of scheduled building in section 2 h of the Act was referred, but this point was neither raised number companysidered. The decision in Dr. Sewa Singh cannot be treated as an authority for the view that change of user of a part of a residential building let out for use solely as a residence, for a scheduled purpose without the written companysent of the landlord does number companystitute the ground for eviction under section 13 2 ii b or that the ground of eviction based on personal need of the landlord companytained in section 13 3 i a is number available to the landlord for that reason. If the logical inference from Dr. Sewa Singh appears to be that, then, with respect, we are unable to agree with the same. As a result of the above discussion, this appeal is allowed and the impugned order passed by the High Court is set aside resulting in restoration of the order of eviction made by the Rent Controller and affirmed by the appellate authority. The respondent will also pay companyt to the appellant. Counsels fee Rs. 3,000.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 127 of 1993. From the Judgment and Order dated 17.1.89 of the Madhya Pradesh High Court in M.P. No. 1187 of 1985. WITH Civil Appeal No. 128 of 1993. WITH Civil Appeal No. 129 of 1993. C. Bhandare, S.K Jain and Ms. Pratibha Jain for the Appellants. K. Sanghi A.V. Rangam and A. Ranganadhan for the Respon- dents. The Judgment of the Court was delivered by PUNCHHI, J. Special leave granted in these three companynected petitions. Each appellant in these appeals was an employee of the State bank of Indore a subsidiary bank of the State Bank of India , the first respondent in these appeals. They were initially in the employment of the Bank of Indore Limited which ceased to exist with effect from 1.1.1960 and became a subsidiary bank known as the State Bank of Indore, in the wake of the State Bank of India Subsidiary Banks Act, 1959 hereafter referred to as the Act . The existing employees of the kind of the appellants claimed to have certain service rights protected under section 11 of the aforesaid Act inclusive of the right to companytinue till the age of 58 years. They were however made to retire before attaining the age of 58 years on different dates, but upon companypleting 30 years of actual service. The subsidiary bank claims to have exercised powers under Regulation 19 1 of the State Bank of Indore officers Service Regulations, 1979 hereafter referred to as the Regulations , in taking such steps. The respective appellants moved the High Court of Madhya Pradesh under Article 226 of the Constitution claiming inter alia that Regulation 19 companyld number be invoked in their cases and, if it all it companyld, then that was ultra vires and in exercise of excessive delegation of legislative powers made over to the State Bank of India under section 63 of the Act. The High Court by a companymon judgment dated 17-1-1989 dismissed the writ petitions of the appellants being Miscellaneous Petition No. 1187 of 1985, Miscellaneous Petition No. 3532 of 1988 and Miscellaneous Petition No. 3197 of 1986, respectively. While these were put to challenge, it was felt by this Court on 26.2.1992 that the State Bank of India, though originally number a respondent before the High Court, should be added as a party since the impugned Regulation 19 had been framed by the Central Board of Directors of the State Bank of India under the powers companyferred on it by Section 63 of the Act. Notice accordingly was given to the State Bank of India and apparently its stance is supportive of the impugned Regulation. When the Act came into force on 1.1.1960 and the subsidiary bank, the State Bank of Indore, came into existence, the age of superannuation of its employees was clearly 58 years. The Regulations came into force on October 1, 1979, almost 19 years later. The field pre-existing was governed by office circulars and departmental practices besides section 11 1 of the Act, which provided as follows TRANSFER OF SERVICES OF EMPLOYEES OF EXISTING BANKS Save as otherwise provided in this Act, every employee of an existing Bank in the employment of that bank immediately before the appointed day, shall, on and from that day, become an employee of the companyresponding new bank and shall hold his office or service therein by the same tenure at the same remuneration and upon the same terms and companyditions and with the same rights and privileges as to pension, gratuity and other matters as he would have held the same on the appointed day, if the undertaking of the existing bank had number been transferred to and vested in the companyresponding new bank and shall companytinue to do so unless and until his employment in that bank is ter- minated or until his remuneration or other terms and companyditions of service are revised or altered by the companyresponding new bank under, or in pursuance of any law, or in accordance Kith any provision which, for the time being governs, his service. emphasis ours . And then Regulation 19 1 , in so far is relevant, provides as follows AGE OF RETIREMENT - 19 1 An officer shall retire from the service of the Bank of attaining the age of fifty-eight years of upon the companypletion of thirty years service, whichever occurs first Provided further that the companypetent authority may, at its discretion, extend the period of service of an officer who has attained the age of fifty-eight years or has companypleted thirty years service as the case may be, should such extension be deemed desirable in the interest of the Bank. The thrust of the claim of the appellants was and is that their retirement age of 58 years was statutorily protected under section 11 1 as a tenure and since there existed numberprovision in the Act for retiring an officer on companypletion of 30 years of services, the Regulation providing so, is an exercise of excessive delegation of legislative powers. To put it differently, it is suggested that the measure is a violent transgression on the security of tenure statutorily protected and was violative of Article 14 of the Constitution. The Regulations are the progeny of Section 63 1 of the Act which empowers the State Bank of India to make Regulations in respect of subsidiary banks with the approval of the Reserve Bank of India. Those Regulations can in numberevent be inconsistent with the Act and the Rules made thereunder, and may provide for all matters for which provision is necessary and expedient for the purpose of giving effect to the provision of the Act. Clause m of sub-section 2 of Section 63 provides that in particular and without prejudice to the generalities of the power under subsection 1 , such Regulations may provide for the companyditions and limitations subject to which the subsidiary bank may appoint officers, advisers and other employees and fix their remuneration and other terms and companyditions of service. As is plain from the reading of Section 11 1 of the Act, while protection of existing terms and companyditions of service is guaranteed under Section 11, that protection lasts so long as those terms and companyditions are number revised or altered under, or in pursuance of any law, or in accordance with any provision, which governed the service. Since the age of superannuation was fixed at 58 years for employees officers who companyld claim protection of section 11, Regulation 19 providing another alternative for effecting retirement upon the companypletion of 30 years of service, even though 58 years had number been attained, subject to its occurring first, was said to be an onslaught on that statutory protection, if the Regulation was taken to apply to the service companyditions of the existing officers. But in case it was meant to apply prospectively and number to the existing officers, the appellants have numbergrievance. Secondly it was asserted that on the plain language of Section 11 of the Act, the security of tenure protected in the first part of the provision was number liable to change as the word tenure was significantly missing in the later part whereunder change is postulated. On that basis it was suggested that tenure of service companyld in numberevent be altered by any change, revision or alteration by the companyresponding new bank. Now let us examine the second argument first. What is protected under section 11 1 on the employee of the companyresponding new bank is his right to hold office or service therein on the same tenure at the same remuneration and upon the same terms and companyditions and with the same rights and privileges as to bonus, gratuity and other matters, as he would have held the same on the appointed day, if the undertaking of the exiting bank had number been transferred to and vested in the companyresponding new bank. That state of affairs is to last unless and until the services of the employee in that bank are terminated or until his removal or other terms and companyditions of service are revised or altered by the companyresponding new bank under, or in pursuance of any law, or in accordance with any provision which, for the time being, governs his service. If holding of office or service by the same tenure is unalterable as excludingly urged on behalf of the appellants by Mr. Murli Bhandare, Sr. Advocate, then on testing we find numberbasis for the same. No-where have the appellants in their respective special leave petitions or writ petitions annexed thereto ever asserted that they hold tenure posts or their services were tenurial. In service jurisprudence the word tenure has acquired a legal sense or companynotation which may mean a fixed term during which an office is held. The appellants have numberhere ever set up such a case before the High Court or to have pleaded that they had any fixity of tenure of a specified duration, laid down in their companytract of service. Rather the appellants throughout have claimed to have joined service in the lower rungs of the banking service and to have risen to the posts of officers by the time they were asked to retire. There is thus numberroom for the argument that providing for the date of retirement was to fix a tenure as retirement as ordinary incidence of service. The legislature in enacting Section 11 1 of the Act cannot be attributed the fault of tautology to have used the word tenure as explanatory of the expression terms and companyditions of service or inclusive of it this far we may go with the appellants. Even if we go that long to say that there was total protection of fixed tenure offices or services, unalterable under the second part of the provision, the appellants gain numberhing, for they have number laid the necessary foundation for that claim ever. Therefore we are of the view that there is numbersubstance in the argument that fixation of age of superannuation is to fix a tenure of office or service. The argument thus fails. The other argument of the appellants that Regulation 19 cannot apply to the case of the appellants as existing officers is also of numbermerit because, as is plain, companyditions of service under section 11 were protected till revised or altered in accordance with law. The purpose of the Act, as spelled out from the preamble of the Act, is to provide for formation of subsidiary banks for the State Bank of India and for the companystitution, management and companytrol of subsidiary banks so formed and for matters companynected therewith or incidental thereto. Section 63, as has been numbericed earlier, empowers the State Bank of India to frame Regulations for the purpose of giving effect to the provisions of the Act. One such purpose is to lay down companyditions and limitations subject to which the subsidiary banks may appoint officers, advisers and other employees and fix their remuneration and other terms and companyditions of service. Co-relating the enabling provisions under section 63 and Regulation 19 framed thereunder, the terms and companyditions so laid thereunder would definitely go to alter or revise the companyditions of service of the existing officers as companytemplated in the second part of Section 11. The manner in which such power is exercised is numberhere arbitrary because the State Bank of India is hedged on the one side to seek approval of the Reserve Bank of India and the Act and the Rules made thereunder on the other, when making Regulations in respect of the subsidiary banks. The policy of providing a retirement rule such as one in Regulation 19, is reflective of a policy and it is uniform for all employees existing and joining in future, for all subsidiary banks uniformly. The third submission about the Regulations being ultra vires the Act, being exercise of excessive delegation too is of numbersubstance when viewed in the scheme of things. As observed earlier, the power to frame Regulations is vested number in the executive government but in a nationalised bank, the State Bank of India, which has to work out the policy of retirement uniformally to sub-serve the interests of the subsidiary banks. The so called protection in Section 11 is number absolute but companyditional to change by the same intendment of the legislature. In K Nagaraj and others etc. etc. v. Chief Secretary of Andhra Pradesh, AIR 1985 SC 551 this Court repelled a challenge to the reduction of retirement age from 58 to 55 on the basis of the policy of the Government, which was found number to be irrational or violating recognised numberms of employment plan. It was also numbericed that number to provide for an age of retirement at all would be companytrary to public interest because the State cannot afford the luxury of allowing its employee to companytinue in service after they have passed the point of peak and that rules of retirement do number take away the right of a member to his livelihood, the only limit is to the right to hold office till the stated number of years. The provision in the Regulation in hand for maintaining the age of retirement at 58 years as before but in the same breath permitting retirement on the companypletion of 30 years of service, whichever occurs earlier, is in keeping with the policy of reckoning a stated number of years of office attaining the crest, whereafter inevitably is the descent, justifying retirement. In this companytext 30 years period of active service is number a small period for gainful employment, or an arbitrary exercise to withhold the right to hold an office beyond thirty years, having number attained 58 years of age. Much reliance was placed by learned companynsel for the parties on B.S. Yadav another v. The Chief Manager, Central Bank of India others, AIR 1987 SC 1706 in support of their respective companytentions. It was companytended on behalf of the respondent bank that Section 12 2 of the Banking Companies Acquisition and Transfer of Undertakings Act, 1970 was pari materia the same as section 11 1 of the present Act and Regulation 19 framed under the former Act was akin to Regulation 19 of the present Regulation providing for different ages of retirement of two categories of employees. As is evident from the Report those two classes were those falling under Rules 1 and 2 of Rules of Age of retirement for whom the age of retirement was 60 years and those falling under Rule 3 for whom the age of retirement was 58 years, depending on the date of recruitment of promotion being prior to or after the appointed day i.e. 19th July, 1969. This Court ruled that the classification so made was valid as it satisfied the tests laid down under Articles 14 and 16 of the Constitution because this Court companyld number say, in the circumstances, that the attitude of the nationalised bank was unreasonable, particularly when the age of retirement of 58 years of the post 19th July, 1969 entrants was companysistent with the companyditions prevailing in almost all the sectors of public employment. But on the other hand it was companytended by the appellants that when retirement age at 58 was the companysistant policy for public employment, as laid down in B.S. Yadavs case, its curtailment by the alternative of 30 years service, if happening earlier, is discriminatory and violative of Articles 14 and 16 of the Constitution. We are number impressed by this argument. The bank nationalisation and creation of subsidiary banks of the nationalised banks have a history of their own. The employees of the two are rationally differentiated on the basis of policy. The employees of the subsidiary banks cannot claim equation with the employees of the nationalised banks to be retiring at the age of fifty eight years, on the basis that the employees of the nationalised banks are number retirable on companypletion of 30 years of service. No other point of substance remains to be discussed even though the parties by their written submissions submitted much after the close of the case made an effort to expand the companytroversy. For the fore-going reasons, we find numbersubstance in these appeals which are dismissed without any order as to companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 502 of 1993. From the Judgment and Order dated 29.5.92 of the Central Ad- ministrative Tribunal, Principal Bench, New Delhi in O.A. No. 1252 of 1992. C. Mahajan, C.V.S. Rao and V.B. Misra for the Appellant. K. Mehta, Dhruv Mehta, Aman Vachhar and Arvind Verma for the Respondent. The Judgment of the Court was delivered by DR. ANAND, J. Aggrieved by an order passed by the Central Administrative Tribunal, Principal Bench, New Delhi in O.A. No. 1252/1992 on 29th of May, 1992, allowing an application filed by the respondent and directing the petitioner herein to companyrect the date of birth of the respondent in the service-record and number to retire him before 30th of April, 1996, the petitioner-Union of India has filed this special leave petition. Leave granted. The respondent joined Government service in the Ministry of Finance Defence in class IV post as a peon on 22nd of February, 1956. At the time of entry into the Government service, his service-book was prepared and the date of birth was recorded as 20th of May, 1934 and since he failed in the matriculation examination, against the companyumn of educational qualification matric failed was recorded. It appears that the respondent later on again appeared in the matriculation examination of the Punjab University under Roll No. 21653 and passed the said examination in May, 1956. On passing the matriculation examination, the respondent was appointed as LDC in the Ministry of Home Affairs on 9.5.1957. In the service-book of the respondent, an entry was, accordingly, made showing his educational qualification as matric Punjab University, Roll No. 21653, year 1956 . This entry was made underneath the earlier entry matric failed and the changed entry was signed by the SO of the Ministry of Home Affairs on 7.9.1957. Though, the date of birth of the respondent, as recorded in the matriculation certificate is 7.4.1938 but while amending the entry about his educational qualification, the entry relating to his date of birth was number altered to companyrespond to the date given in the matriculation certificate and it companytinued to be recorded as 20th of May, 1934. In 1963, .the respondent was transferred to the Ministry of Human Resources Development, Department of Education. On being numberified about his date of superannuation as 31.5.1992, the respondent realised that he was being retired on the basis of his date of birth as originally recorded in the service-record as 20.5.1934, ignoring the date of birth as reflected in the matriculation certificate. He made a representation in September 1991 for the alteration of his date of birth but the same was rejected on 4.12.1991. He submitted yet another representation of 3.1.1992, wherein a request was made, the companysider his case for the companyrection of date of birth afresh on the basis of the date of birth as recorded in the matriculation certificate. The request of the respondent was turned down vide O.M. dated 29.1.1992. The respondent submitted yet another representation on 26.3.1992, wherein he asserted that he had submitted the matriculation certificate on 4.9.1957, when the entry about his educational qualification was altered and that thereafter since he did number hear anything to the companytrary, he presumed that the appellants had also companyrected his date of birth in the service book. While making that representation, the respondent had also drawn attention of the Department to an order of the Central Administrative Tribunal in the case of one Darshan Singh, wherein the Department had been directed by the Principal Bench of CAT to companyrect the date of birth of Darshan Singh on the basis of the date of birth given in the matriculation certificate and it was submitted that his date of birth should also be companyrected on the basis of the matriculation certificate. That representation was rejected on 22.4.1992 by an order which reads thus SubjectRequest for alteration in the Date of Birth of Sh. Harnam Singh, Asstt. in the Service Book. With reference to his representation dated 26th March, 1992 regarding alteration in his date of birth, Sh. Harnam Singh, Asstt. is informed that his representation has been companysidered once again and it has number been found possible to accede to his request for changing his date of birth from 20.5.1934 to 7.4.1938. As regards his companytention that he had submitted a companyy of matriculation certificate in 1956, Sh. Harnam Singh, has already been informed vide OM dated 29.1.1992 about DOP Ts ruling that furnishing a companyy of matriculation certificate does number automatically imply change in date of birth unless the Govt. servant specifically applies for it within the prescribed time limit and the appointing authority accepts his request. In so far as CATs judgment in the case of Sh. Darshan Singh, a companyy of which has been enclosed by Sh. Harnam Singh with his representation, it may be stated that in the said judgment the CATs order is based on the fact that Sh. Darshan Singh had number been shown his service book even once during his entire service. Sh. Harnam Singh had seen his service book several times latest being in 1976, and he has signed the Service Book in verification of the Correctness of the entries made therein and he had never pointed out the incorrectness in his date of birth. The CATs Judgment enclosed by Sh. Harnam Singh with his representation is thus distinguishable from the case of Sh. Harnam Singh. Apart from this Sh. Harnarn Singh has number furnished any new grounds for reconsideration of his case. Sh. Harnam Singh is also informed that numberfurther representation on the subject will be companysidered. unless he furnished any new facts information. The respondent challenged the above order through OA No. 1252/92 dated 29.5.1992 before the CAT. The application was companytested by the appellant on various grounds including the plea of limitation. It was urged by the appellant that the OA was barred under FR 56 Note 5 and General Financial Rules 1979 and therefore, did number merit any companysideration. The appellant had further asserted that the respondent knew about the entry of his date of birth as 20.5.1934 in his service-record since he had signed his service book on various occasions, ever since he joined the service, but his representation for companyrection of date of birth was made only in September 1991, much belatedly and even beyond a period of five years from the date of entry into Government service and as envisaged by SO 3997 dated 30th of November, 1979 the same companyld number therefore be entertained. The Tribunal, however, did number agree with the appellant and allowed the application filed by the respondent directing the appellant to companyrect his date of birth in the service record as per the date of birth recorded in the matriculation certificate. Mr. V.C. Mahajan, the learned Senior Advocate appearing for the Union of India, has reiterated the arguments raised before the Tribunal and has further submitted that in view of the law laid down in Amulya Chandrakalita v. Union of India Ors., 1991 1 SCC 181 the judgment in the present case rendered by only a single member of the Tribunal, is invalid and, therefore, the order deserves to be set aside and the case remanded to the Tribunal for its fresh disposal in accordance with law. Learned companynsel for the respondent has, on the other had argued for dismissal of the appeal and supported the impugned order of the Tribunal. The fact that the date of birth was recorded on the first sheet of the service book when the respondent joined as a peon as well as in various seniority lists of UDC and LDC issued from time to time as 20.5.1934 is number in dispute. It also is number disputed that the date of birth of the respon- dent in the matriculation certificate issued by the Punjab University is 7.4.1938. The fact that the matriculation certificate has been produced before the department by the respondent after he had passed the matriculation examination and an alteration of his educational qualification was made in the service book is also beyond companytroversy. There is also numberdoubt that while submitting the matriculation certificate, the respondent had number requested for any alteration in the date of birth and that he had filed the representation for companyrection of his date of birth for the first time only in September, 1991, just a few months before his numberified date of superannuation. A Government servant, after entry into service, acquires the right to companytinue in service till the age of retirement, as fixed by the State in exercise of its powers regulating companyditions of service, unless the services are dispersed with on other grounds companytained in the relevant service rules after following the procedure prescribed therein. The date of birth entered in the service records of a civil servant is, thus of utmost importance for the reason that right to companytinue in service stands decided by its entry in the service record. A Government servant who has declared his age at the initial stage of the employment is, of companyrse, number precluded from making a request later on for companyrecting his age. It is open to a civil servant to claim companyrection of his date of birth, if he is in possession of the irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is numberperiod of limitation prescribed for seeking companyrection of date of birth, the Government servant must do so without any unreasonable delay. In the absence of any provision in the rules for companyrection of date of birth, the general principle of refusing relief on grounds of latches or stale claims, is generally applied to by the companyrts and tribunals. It is numberetheless companypetent for the Government to fix a time limit, in the service rules, after which numberapplication for companyrection of date of birth of a Government servant can be entertained. A Government servant who makes an application for companyrection of date of birth beyond the time, so fixed, therefore, cannot claim, as a matter of right, the companyrection of his date of birth even if he has good evidence to establish that the recorded date of birth is clearly erroneous. The law of limitation may operate harshly but it has to be applied with all its rigour and the companyrts or tribunals cannot companye to the aid of those who sleep over their rights and allow the period of limitation to expire. Unless altered, his date of birth as recorded would determine his date of superannuation even if it amounts to abridging his right to companytinue in service on the basis of his actual age. Indeed, as held by this Court in State of Assam Anr. v. Daksha Prasad Deka Ors., 1971 2 SCR 687 a public servant may dispute the date of birth as entered in the service record and apply for its companyrection but till the record is companyrected he can number claim to companytinue in service on the basis of the date of birth claimed by him. This companyrt said The date of companypulsory retirement under F.R. 56 a must in our judgment, be determined on the basis of the service record, and number on what the respondent claimed to be his date of birth, unless the service record is first companyrected companysistent with the appropriate procedure. A public servant may dispute the date of birth as entered in the service record, and may apply for companyrection of the record. But until the record is companyrected, he cannot claim that he has been deprived of the guarantee under Article 311 2 of the Constitution by being companypulsorily retired on attaining the age of superannuation on the footing of the date of birth entered in the service record. Note 5 to Fundamental Rule 56 governing companyrection of date of birth in the service record, substituted by Government of India, Ministry of Home Affairs, Department of Personnel and Administrative Reforms Notification No. 19017/79/Estt-A dated 30th November, 1979 published as SO 3997 in the Government of India Gazette dated 15th of December 1979 limits the exercise of the right by the government servant to seek alteration of his date of birth only within the specified period. The provision reads as under Note 5 The date on which a Government servant attains the age of fifty-eight years or sixty years, as the case may be, shall be determined with reference to the date of birth declared by the Government servant at the time of appointment and accepted by the appropriate authority on production, as far as possible, of companyfirmatory documentary evidence such as High School or Higher Secondary or Secondary School Certificate or extracts from Birth Register. The date of birth so declared by the Government servant and accepted by the appropriate authority shall number be subject to any alteration except as specified in this numbere. An alteration of date of birth of a Government servant can be made, with the sanction of a Ministry or Department of the Central Government or the Comptroller and Auditor General in regard to persons serving in the Indian Audit and Accounts Department, or an administrator of a Union Territory under which the Government servant is serving if a a request in this regard is made within five years of his entry into Government service b it is clearly established that a genuine bonafide mistake has occurred and c the date of birth so altered would number make him ineligible to appear in any School or University or Union Public Service Commission examination in which he had appeared, or for entry into Government service on the date on which he first appeared at such examination or on the date on which he entered Government service. According to the above amendment, it is obvious that the request for companyrection of date of birth is required to be made by the Government servant within five years of his entry into Government service and his date of birth may be companyrected if it is established that, a genuine bona fide mistake had occurred while recording his date of birth at the time of his entry into Government service. The CAT in the instant case was of the opinion that the bar of five years companyld only apply to such Government servants who joined service after 1979, when the amendment came into force and that the said period of limitation would number apply to Government servants who were in service for more than five years prior to 1979. The Tribunal while allowing the application filed by the respondent and directing the appellant to companyrect his date of birth in the service record numbericed the objection raised on behalf of the appellant to the effect that the mere filing of the matriculation certificate in 1956 did number imply that the date of birth already recorded in the service record stood altered by the appellants automatically even without the companycerned Government servant making a prayer in that behalf or raising the issue at the relevant time after his posting as LDC. CAT held that there was numberperiod of limitation for the companyrection of date of birth and in so holding relied upon the judgment in the case of Darshan Singh v. Union of India, decided by the Principal Bench of CAT on 9.8.1990 and observed that only on the basis of companying very late for alteration of the date of birth, the State companyld number oust the claim of the respondent. The Tribunal observed It is trite that at any time during the service, it is open to an employee to make a request for the alteration of the recorded date of birth and that if the request is supported by companyent evidence to establish that the recorded date is wrong, companyrection has to be made. The Tribunal also numbericed the submission of the learned companynsel for the appellant to the effect that the judgment in Darshan Singhs case supra was number applicable because unlike in Darshan Singhs case, who had numberoccasion to see his service book even once during his entire service career, the respondent herein had number only seen his service book several times but had also signed the same at various places in verification of the companyrectness of the entries made therein and had never objected to the date of birth as companytained in the first page of the service book or as given in various seniority lists prepared and published form time to time till September 1991. The Tribunal disposed of the submission by observing A perusal of the service record does show that the pages which the applicant has signed is number the first page where the date of birth is recorded, but subsequent pages where other service particulars like pay fixation etc. are mentioned. As regards the entry of date of birth in the seniority list, that may be within the knowledge of the applicant, but seeing to the nature of the job on which the applicant is engaged, being ministerial, it is number expected that the seniority would have mattered much as the promotion is made only on the basis of seniority-cum-fitness in due companyrse. Moreover, there is numberauthenticity regarding the date of birth recorded in the seniority list and more emphasis is attached to the position of the person in the lis vis-a-vis other similarly placed persons in the cadre. The approach of the Tribunal does number companymend to us as it tends to create an invidious discrimination, unsustainable in law, by creating two artificial classes of Government Servants between those who joined service before and after 1979. It is a too simplistic way of looking at the issue, ignoring the ground realities and the intention of the rule making authority to discourage stale claims and number-suit such government servants who seek the alteration of their recorded date of birth belatedly and mostly on the eve of their superannuation. To say that the respondent, even though he signed the service book at a number of places at different times and saw the seniority lists, may number have still companye to know as to what his recorded date of birth was, is to ignore human companyduct and put premium on negligence. The observations of CAT quoted above are neither logical number sound. Of companyrse, Note 5 to FR 56 m was incorporated only in 1979 and it provides for request to be made for companyrection of date of birth within five years from the date of entry into Service but what is necessary to be examined is the intention of the rule making authority in providing the period of limitation for seeking the companyrection of the date of birth of the Government Servant viz. to discourage stale claims and belated applications for alteration of date of birth recorded in the service book at the time of initial entry. It is the duty of the companyrts and tribunals to promote that intention by an intelligible and harmonious interpretation of the rule rather than choke its operation. The interpretation has to be the one which advances the intention and number the one which frustrates it. It would number be the intention of the rule making authority to give unlimited time to seek companyrection of date of birth, after 1979, to those government servant who had joined the service prior to 1979 but restrict it to the five year period for those who enter service after 1979. Indeed, if a government servant, already in service for a long time, had applied for companyrection of date of birth before 1979, it would number be permissible to number-suit him on the ground that he had number applied for companyrection within five years into service, but the case of government servant who applied for companyrection of date of birth only after 1979 stands on a different footing. It would be appropriate and in tune with harmonious companystruction of the provision to hold that in the case of those government servants who were already in service before 1979, for a period of more than five years, and who intended to have their date of birth companyrected after 1979, may seek the companyrection of date of birth within a reasonable time after 1979 but in any event number later than five years after the companying into force of the amendment in 1979. This view would be in companysonance with the intention of the rule making authority. The interpretation which we have placed on the provision with regard to the cases of those government servants who were in service prior to 1979 but had number sought the alteration in the date of birth till after the amendment in 1979 is followed by the view which this companyrt has taken earlier. By way illustration we may refer to the case of New India Insurance Co. Ltd. v. Smt. Shanti Misra, 1975 2 SCC 840 where the husband of the respondent in that case died in an accident in 1966. A period of two years was available to the respondent for instituting a suit for recovery of damages. In March, 1967 the Claims Tribunal under Section 110 of the Motor Vehicles Act, 1939 was companystituted, barring the jurisdiction of the civil companyrt and prescribed 60 days as the period of limitation. The respon- dent filed the application in July 1967. It was held that number having filed a suit before March, 1967 the only remedy of the respondent was by way of an application before the Tribunal. So far the period of limitation was companycerned, it was observed that a new law of limitation providing for a shorter period cannot certainly extinguish a vested right of action. In view of the change of the law it was held that the application companyld be filed within a reasonable time after the companystitution of the Tribunal and, that the time of about four months taken by the respondent in approaching the Tribunal after its companystitution, companyld be held to be either reasonable time or the delay of about two months companyld be companydoned under the proviso to Section 110-A 3 . Similarly in Vinod Gurudas Raikar v. National Insurance Co., 1991 4 SCC 333 the precise question which was companysidered by the Bench was The period of limitation for filing a claim petition both under the old Act and the new Act is six months from the date of the accident. The difference in the two Acts, which is relevant in the present case, is in regard to the provisions relating to companydonation of delay. In view of the proviso to sub-section 3 of Section 166 of the new Act, the maximum period of delay which can be companydoned is six months, which expired on January 22, 1990. If the new Act is held to be applicable, the appellants petition filed in March had to be dismissed. The case of the appellant is that the accident having taken place before the new Act came into force, the proceeding is governed by the old Act, where there was numbersuch restriction as in the new Act. The question is as to which Act is applicable the new Act or the old. The Bench opined If in a given case the accident had taken place more than a year before the new Act companying in force and the claimant had actually filed his petition while the old Act was in force but after a period of one year, the position companyld be different. Having actually initiated the proceeding when the old Act companyered the field a claimant companyld say that hi right which has accrued on filing of the petition companyld number be taken away. The present case is different. The right or privilege to claim benefit of a provision for companydonation of delay can be governed only the law in force at the time of delay. Even the hope or expectation of getting the benefit of an enactment presupposes applicability of the enactment when the need arises to take its benefit. In the present case the occasion to take the benefit of the provision for company- donation of delay in filing the claim arose only after repeal of the old law. Obviously the ground for companydonation set up as sufficient cause also relates to the time after the repeal. The benefit of the repealed law companyld number, therefore, be available simply because the cause of action for the claim arose before repeal. Sufficient causes a ground of companydonation of delay in filing the claim is distinct from ,cause of action for the claim itself The question of companydonation of delay must, therefore, be governed by the new law. We accordingly hold that the High Court was right in its view that the case was companyered by the new Act, and delay for a longer period than six months companyld number be companydoned. In the instant case, the date of birth recorded at the time of entry of the respondent into service as 20th May 1934 had companytinued to exist, unchallenged between 1956 and September 1991, for almost three and a half decades. The respondent had the occasion to see his service book on numerous occasions. He signed the service book at different places at different points of time. Never did he object to the recorded entry. The same date of birth was also reflected in the seniority lists of LDC and UDC, which the respondent had admittedly seen, as there is numberhing on the record to show that he had numberoccasion to see the same. He remained silent and did number seek the alteration of the date of birth till September 1991, just a few months prior to the date of his superannuation. Inordinate and unexplained delay or laches on the part of the respondent to seek the necessary companyrection would in any case have justified the refusal of relief to him. Even if the respondent had sought companyrection of the date of birth within five years after 1979, the earlier delay would number have number-suited him but he did number seek companyrection of the date of birth during the period of five years after the incorporation of numbere 5 to FR 56 in 1979 either. His inaction for all this period of about thirty five years from the date of joining service, therefore precludes him from showing that the entry of his date of birth in service record was number companyrect. In the facts and circumstances of this case, we are number satisfied that the Tribunal was justified in issuing the direction in the manner in which it has been done. The application for companyrection of date of birth, entered in the service book in 1956, for the first time made in September 1991, was hopelessly belated and did number merit any companysideration. As already numbericed, it had number been made even within the period of five years from the date of companying into force of Note 5 to FR 56 m in 1979. The Tribunal, therefore, fell in error in issuing the direction to companyrect his date of birth and the impugned order of the Tribunal cannot be sustained. Ordinarily, keeping in view of judgment of this Court in Amulya Chandra Kalitas case supra , we should have remanded the case to the Tribunal for a fresh disposal because of the fact that the order of the Tribunal was rendered by only one member or to have awaited the decision of some cases pending in this Court in which the validity of the order passed by single member of the tribunal is under companysideration but since we have ourselves looked into all the facts and circumstances of the case and given an interpretation to Note 5 to FR 56 m , we do number companysider it. expedient to adopt either of these companyrse. In view of the interpretation placed by us, the appeal succeeds and is allowed. The impugned order of the Tribunal is set aside. There shall however, be numberorder as to companyts.

Case appeal was accepted by the Supreme Court

CIVIL ORIGINAL JURISDICTION Transfer Case C No. 78 of 982 etc. etc. Under Article 139A of the Constitution of India. Vepa Sharathy, Attorney General, G. Ramaswamy, Additional Solicitor General, R.K. Jain, B.N. Bhat, K. Lahiri, K. Parasaran, A.K. Ganguli. F.S. Nariman, Uday Lalit, A.C. Manoj Goel, K.M.K. Nair, Kailash Vasudev, Sudhir Walia, Mohit Mathur, Ms. A. Subhashini, K. Swamy, T. Topgay, Rathin Das, Ajit Kumar Sinha, S.C. Sharma, Amlan Ghosh, Ms. J.S. Wad, Mayakrishnan, D.P. Mukherjee, G.S. Chatterjee, and K. Bhat for the appearing Parties. The Judgments of the Court were delivered by SRARMA, CJ. The two companystitutional questions of vital importance which arise in this case are i whether a seat can be earmarked at all in the Legislature of a State after its companyplete merger in India for a repre- sentative of a group of religious institutions to be elected by them, and ii whether seats can be reserved in favour of a particular tribe far in excess of its population. My answer to both the questions is in the negative. These cases relate to the companystitution of Legislative Assembly of Sikkim which merged with India in 1975. They were instituted as writ petitions under Article 226 of the Constitution before the Sikkim High Court and have been later transferred to this companyrt. The main case being Writ Petition No. 4 of 1980 registered as Transfer Case No. 78 of 1982 after transfer to this Court was filed by the petitioner R.C. Poudyal in person and he was companyducting this case himself, and will be referred to as the petitioner or the writ petitioner in this judgment. During the companyrse of the hearing of the case, Mr. R.K. Jain assisted the Court as amicus curiae and pressed the writ petition on his behalf. Transfer Case No. 84 of 1982 was filed by Somnath Poudyal as Writ Petition No. 12 of 1980 in the High Court, taking a similar stand as in writ petition No. 4 of 1980. The third case being Writ Petition No. 15 of 1990 filed by Nandu Thapa, also challenging the impugned reservations, is Transfer Case No. 93 of 1991. During the hearing, however, the stand taken by his companynsel, Mr. K.N. Bhat was substantially different from the case of the main writ petitioner, and he lent support to some of the arguments of the companytesting respondents. The case in Writ Petition No. 16 of 1990 of the High Court Transfer Case No. 94 of 1991 here is similar to that in Transfer Case No. 93 of 1991. The writ petition has been defended mainly by the State of Sikkim, represented by Mr. K. Parasaran, Union of India appearing through Mr. Attorney General and by Mr. F. S. Nariman on behalf of certain other parties. The relevant provisions relating to the impugned reservations are those as included in the Representation of the People Acts, 1950 and 1951, by the Representation of the People Amendment Act, 1980 Act 8 of 1980 purportedly made by virtue of Article 371F f , inserted in the Constitution in 1975 by the Constitution Thirty-Sixth Amendment Act, 1975 and companysequential amendments in the Delimitation of Parliamentary and Assembly Constituencies Order, 1976. The writ petitioner companytends that the impugned provisions of the Representation of the People Acts arc ultra times of the Constitution and cannot be saved by Article 37IF f . Alternatively it has been argued that if the provision, of Article 371F f are interpreted as suggested on behalf of the respondents, the same would be violative of the basic features of the Constitution and would, therefore, itself be rendered invalid. Another line which was pursued during the argument was that assuming the inter- pretation of the Act and the Constitution as put by the respondents is companyrect, still the circumstances do number justify the impugned reservations in the Assembly which are, therefore, fit to be struck down. The case of the respondents who are challenging the stand of the writ petitioner, is that the companystitutional amendment bringing in Article 371F f , as also the relevant amended provisions of the Representation of the People Acts are legal and valid, and having regard to all the relevant circumstances in which Sikkim became a part of the Indian Union the writ petition of the petitioner is fit to be dismissed. For appreciating the points arising in the case and the arguments addressed on behalf of the parties it will be necessary to briefly companysider the historical background of and the companystitutional position in Sikkim before and after its merger with India. Sikkim, during the British days, was a princely State under a hereditary monarch called Chogyal, subject to British paramountcy. The Chogyal, also described as Maharaja, was a member of the chamber of Princes entitled to gun salute of 15. The provisions of the Government of India Act, 1935 were applicable and Sikkim thus did number have any attribute of sovereignty of its own. On the independence of India in 1947 there was a public demand in Sikkim for merger with India which was resisted by the Rulers. The statements made in paragraph 3 v in the companynter affidavit of the Union of India, respondent No. 1, sworn by the Deputy Secretary, Ministry of Home Affairs, is illuminating. It has been inter alia said that there was a strong and clearly expressed sentiment on the part of the people of Sikkim favouring closer relations with India and growth of genuine democratic institutions which led to large scale agitations demanding merger with India. However, the Government of India did number favour an immediate change in Sikkims status, and, therefore, only a treaty was entered into between Sikkim and the Government of India whereunder the latter assumed the responsibility with respect to the defence, external affairs and companymunication of Sikkim on the terms detailed in the document dated 3.12.1950. Chogyal, thereafter, took several steps towards sharing his power with the people by providing for elections, which will be dealt with later. The public demand developed into violent demonstrations leading to companyplete breakdown of law and order, which forced the then Chogyal to request the Government of India to assume the responsibility for establishment of law and order and good administration in Sikkim. Ultimately a formal agreement was signed on May 8, 1973 to which the Government of India, the then Chogyal and the leaders of the political parties representing the people of Sikkim, were parties. I will have to refer to this agreement in greater detail later but it will be useful even at this stage to see one of the clauses of the Agreement which reads as follows- The three parties hereby recognize and undertake to ensure the basic human rights and fundamental freedoms of the people of Sikkim. The people of Sikkim will enjoy the right of election on the basis of adult suffrage to give effect to the principles of one man one vote. emphasis added The population of Sikkim has bee., companystituted mainly by three ethnic groups known as Lepchas, Bhutias and Nepalis. People from India also have been going to and settling in Sikkim but their number was small before 1973. Although the population of Nepalis has been far larger than the Lepchas and the Bhutias, their influence in the polity was companysiderably less as Chogyal was a Bhutia and with a view to perpetuate his hold, there was a companysistent policy for uniting Lepchas and Bhutias as against the rest. On the lapse of British paramountcy and in its place the substitution of the protectorate of India, Chogyal in an attempt to assuage the public sentiment, issued a Proclamation providing for establishment of a State Council of 12 members, allocating 6 seats to Bhutia and Lepchas and 6 to Nepalis, all to be elected by the voters divided in 4 territorial companystituencies. Only after a few months a second Proclamation followed on March 23, 1953, adding seats for 6 more members with one of them as President of the Council to be numberinated by the Maharaja, i.e., Chogyal. Thus the total number rose to 18. Maharaja, however, reserved his right to veto any decision by the Council and to substitute it by his own. Another Proclamation which was issued in 1957 again maintained the parity of 6 seats each for Bhutia-Lepchas and Nepalis. By a further Proclamation dated 16.3.1958, there was an addition of 2 more seats to the Council, one described as Sangha seat earmarked for religious Budhist Monasteries run by Monks who arc Lamas, and another declared as general seat. Thus, for the first time in 1958 Chogyal, by creating a general seat took numbere of the presence of the immigrants who were neither Bhutia- Lepchas number Nepalis and were mostly Indians. He also introduced the Lamas in the Council as he was sure of their support for him, as will be seen later. Appended to the Proclamation, there was a Note of the Private Secretary to the Chogyal which has been referred to by the respondents in their arguments in support of the impugned reservations. The Note is in three sub-paras dealing with the Sangha seat, the general seat and the question of parity between the Bhutia-Lepchas and the Nepalis. It has been mentioned in the first sub-para a that the Sangha companystituted a vital and important role in the life of the companymunity in Sikkim and had played a major part in taking of decisions by the Councils in the past. In sub-para b it has been stated that the political parties have been demanding one-third of the total seats in the Council to be made available to all persons having fixed habitation in Sikkim although number belonging to any of the categories of Bhutias-Lepchas and Nepalis, and the Maharaja by a partial companycession had allowed one seat for the general people. The last sub-para declares the desire of the Maharaja that the Government of Sikkim should be carried on equally by the two groups of the Bhutia-Lepchas and Nepalis, without one companymunity imposing itself or encroaching upon the other. By a later Proclamation dated December 21, 1966 the Sikkim Council was reconstituted with a total number of 24 members, out of whom 14 were to be elected from 5 territorial companystituencies, reserving 7 seats for Bhutia- Lepchas and 7 seats for Nepalis one by the Scheduled Castes, one by the Tsongs, and one was to be treated as a general seat. The Sangha seat was maintained, to be filled up by election through an electoral College of the Sang has and the remaining 6 seats to be numberinated by the Chogyal as before. It appears that it was followed by another similar Proclamation in 1969, which has number been placed before us by the parties. In spite of the establishment of the Sikkim Council, the ultimate power to govern remained companycentrated in the hands of Chogyal, who besides having the right to numberinate 6 members in the Council, reserved to himself the authority to veto as also of taking final decision in any matter. The people companyld number be satisfied with this arrangement, and as said earlier, there was widespread violent demonstrations and companyplete companylapse of law and order which forced the Chogyal to approach the Government of India to take companytrol of the situation. The 3 parties namely the Chogyal, the people of Sikkim represented by the leaders of the political parties, and the Government of India were ultimately able to arrive at the terms as included in the Tripartite Agreement of 8.5.1973 and the authority of Chogyal was companysiderably reduced. The preamble in the agreement specifically mentioned that the people of Sikkim had decided to adopt, A system of elections based on adult suffrage which will give equitable representation to all sections of the people on the basis of the principle of one man one vote. emphasis supplied It was further said that with a view to achieve this objective, the Chogyal as well as the representatives of the people had requested the Government of India to take necessary steps. The first paragraph dealing with the Basic Rights declared that the people of Sikkim would enjoy the right of election on the basis of adult suffrage to give effect to the principle of one man one vote. Another provision of this agreement which is highly important for decision of the issues in the present case is to be found in the 5th paragraph which reads as follows- The system of elections shall be so organised as to make the Assembly adequately representative of the various sections of the population. The size and companyposition of the Assembly and of the Executive Council shall be such as may be prescribed from time to time, care being taken to ensure that numbersingle section of the population acquires a dominating position due mainly to its ethnic origin, and that the rights and interests of the Sikkimese Bhutia Lepcha origin and of the Sikkimese Nepali, which includes Tsong and Scheduled Caste origin, are fully protected. Strong reliance has been placed on the above paragraph on behalf of the respondents in support of their stand that the Bhutia-Lepchas who companytribute to less than one-fourth of the total population of the State, are entitled to about 40 of the seats in the Council as allowed by the impugned provisions. The next Proclamation which is relevant in this regard was issued on the 5th of February, 1974 and was named as the Representation of Sikkim Subjects Act, 1974. It directed the formation of Sikkim Assembly companysisting of 32 elected members 31 to be elected from 31 territorial companystituencies and one Sangha companystituency to elect one member through an electoral College of Sanghas. The break- up of the 32 seats is given in section 3, directing that 16 companystitutencies including one for the Sangha were to be reserved for Bhutia-Lepchas, and the reamining 16 including one for Tsongs and another for the Scheduled Castes for Nepalis. As a result the general seat disappeared. A further Act was passed the same year in the month of July by the newly companystituted Sikkim Assembly emphasising once more the decision of the people to hold the elections to the Assembly on the basis of one man one vote, that is to say every person who on the prescribed date was a Subject of Sikkim, was number below the prescribed age and was number otherwise disqualified under the Act was entitled to be registered as voter at any future election. The Assembly which was established under the 1974 Act was vested with larger powers than the Council earlier had, and the fight for effective power between Chogyal and the people entered the crucial stage. The main party, Sikkim Congress, representing the people captured 31 out of 32 seats at the poll at the election held in pursuance of the agreement, and it is significant that its elections manifesto went on to state We also aspire to achieve the same democratic rights and institutions that the people of India have enjoyed for a quarter of century. emphasis added Ultimately a special opinion poll was companyducted by the Government of Sikkim and an unambiguous verdict was returned by the people in favour of Sikkims joining and becoming a part of the Indian Union. In pursuance of this development the Constitution of India was amended by the Constitution Thirty-Fifth Amendment Act, 1974, inserting Article 2A which made Sikkim associated with the Union of India on certain terms and companyditions. The amendment came into force in February 1975. On the 10th of April, 1975 the Sikkim Assembly passed another momentous resolution abolishing the institution of Chogyal and declaring that Sikkim would henceforth be a companystituent unit of India, enjoying a democratic and fully responsible government. A request was made in the resolution to the Government of India to take the necessary measures. Accordingly the Constitution was further amended by the Constitution Thirty-Sixth Amendment Act, 1975 which became effective in May, 1975. As a result of this companystitutional amendment Sikkim companypletely merged in the Union of India. By the Thirty-Fifth Amendment of the Constitution, Sikkim was, as mentioned earlier, merely associated with the Union of India by insertion of Article 2A on the terms and companyditions set out separately in a schedule added as the Tenth Schedule. Certain amendments were made in Articles 80 and 81 also. By the Thirty-Sixth Amendment of the Constitution, a full merger of Sikkim with Union of India was effected by adding Sikkim as Entry 22 in the First Schedule of the Constitution under the heading 1. The State. Further, some special provisions were made in a newly added Article 371F, and strong reliance has been placed on behalf of the respondents on the provisions of clause f in Article 371F as authorising the impugned amended provisions in the Representation of the People Acts. Article 2A, the Tenth Schedule, and certain other provisions in some of the Articles were omitted. In 1978 the Bhutia-Lepchas were declared as Scheduled Tribes in relation to the State of Sikkim by a Presidential Order issued under clause 1 of Article 342 of the Constitution of India, and they thus became entitled to the benefits of reservation of seats in the State legislature in accordance with Article 332. The companysequential reservation in the state legislature were made in the Representation of the People Act, 1950 and the Representation of the People Act, 1951, twice by the Act 10 of 1976 and the Act 8 of 1980, but number companysistent with clause 3 of Article 332 which is in the following terms 332 Reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative Assemblies of the States.-- 1 2 The number of seats reserved for the Scheduled Castes or the Scheduled Tribes in the Legislative Assembly of any State under clause 1 shall bear, as nearly as may be, the same proportion to the total number of seats in the Assembly as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State or part of the State, as the case may be, in respect of which seats are so reserved, bears to the total population of the State. Out of the total seats of 32 in the House, 12 have been reserved for Sikkimese of Bhutia-Lepcha origin and one seat for the Sanghas by clauses a and c respectively of the newly inserted sub-section 1A in section 7 of the Representation of the People Act, 1950. Dealing further with the Sangha seat it is provided in section 25A of the 1950 Act that there would be a Sangha companystituency in the State and only Sanghas belonging to Monasteries recongnised for the purpose of elections held in Sikkim in April, 1974 shall be entitled to be registered in the electoral roll, and the said electoral roll shall be prepared or revised in such a manner as may be directed by the Election Commission. Consequently amendments were made by inserting section 5A in the Representation of the People Act, 1951. The extent of each companystituency and the reservation of seats were initially directed to follow the position immediately before the merger under the Thirty-Sixth Amendment of the Constitution, and later amendments were made in this regard in the Delimitation of Parliamentary and Assembly Constituencies Order, 1976. The amended provisions of sub- section 3 of section 7 dealt with besides dealing with Arunachal Pradesh this matter. These special provisions have been challenged by the writ petitioner on various grounds. The first objection taken on behalf of the respondents is to the maintainability of the writ petitions on the ground that the dispute raised by the petitioner is of political nature and the issues are number justiciable. The argument proceeds thus. To acquire fresh territories is an inherent attribute of sovereignty and this can be done by companyquest, treaty or otherwise on such companyditions which the sovereign companysiders necessary. Any question relating thereto entirely lies within the political realm and is number amenable to the companyrts jurisdiction. Referring to Articles 2 and 4 of the Constitution it has been urged that the admission into the Union of India is permissible without a companystitutional amendment and the terms and companyditions of such admission are number open to scrutiny by the companyrts. Article 371F must, therefore, be respected, and the impugned amendments of the Representation of the People Acts must be held to be legally valid on account of the provisions of clause f of Article 371F. I am afraid this argument fails to take into account the vital difference between the initial acquisition of additional territory and the admission to the same as a full-fledged State of the Union of India similar to the other States. Special provisions for any State can certainly be made by an amendment of the Constitution, as is evident by Articles 371A. 371B, 371C et cetera, but it is number permissible to do so in derogation of the basic features of the Constitution. So far the power of sovereignty to acquire new territories is company territories is companycerned, there cannot be any dispute. The power is inherent, it was, therefore, number companysidered necessary to mention it in express terms in the Constitution. It is also true that if an acquisition of new territories is made by a treaty or under an agreement the terms of the same will be beyond the scrutiny of the companyrts. The position, however, is entirely different when new territory is made part of India, by giving it the same status as is enjoyed by an existing State under the Constitution of India. The process of such a merger has to be under the Constitution. No other different process adopted can achieve this result. And when this exercise is undertaken, there is numberoption, but to adopt the procedure as prescribed in companyformity with the Constitution. At this stage the companyrts jurisdiction to examine the validity of the adopted methodology cannot be excluded. So far the present case in companycerned the decision does number admit of any doubt that when the Thirty-Sixth Amendment of the Constitution was made under which Sikkim joined India as a full-fledged State like other States, power of amendment of the Constitution was invoked, and this had to be done only companysistent with the basic features of the Constitution. As mentioned earlier when Sikkim became associated with India as a result of the Thirty-Fifth Amendment of the Constitution, it did number become a State of the Union of India. A special status was companyferred on Sikkim by Article 2A read with Tenth Schedule but, without amending the list of the States in the First Schedule. Although the Status, thus bestowed on Sikkim then, was mentioned as Associate, it companyld number be treated as a mere protectorate of India. The protectorateship had been there in existence from before under the earlier treaties and by Article 2A read with Tenth Schedule something more was achieved. This, however, was short of Statehood. Consequently Sikkim was number enjoying all ,he benefits available under the Constitution of India. By the Thirty- Sixth Amendment there came a vital change in the Status of Sikkim. It was included as the 22nd Entry in the list of the States in the First Schedule without any reservation. Article 2A. the Tenth Schedule and other related provisions included in the Constitution by the Thirty-Fifth Amendment, were omitted from the Constitution. Thus, as a result of the Thirty-Sixth Amendment Sikkim became as much a State as any other. Considered in this background, the objection to the maintainability of the writ petitions cannot be upheld. Further, the challenge by the writ petitioner is to the amendments introduced in the Representation of the People Acts by the Central Act 8 of 1980 as being unconstitutional and number protected by Article 371F f and this point again has to be decided by the Court. If the companyclusion be that clause f of Article 371F permits such amendments the further question whether clause f itself is violative of the basic features of the Constitution will have to be examined. In my view the position appears to have been settled by the Constituted Bench of this Court in Mangal Singh and Anr. v. Union of India, 1967 2 SCR 109, at page 11.2 in the following terms The law referred to in Arts. 2 3 may therefore alter or amend the First Schedule to the Constitution which sets out the names of the States and description of territories thereof and the Fourth Schedule allotting seats to the States in the Council of States in the Union Parliament. Power with which the Parliament is invested by Arts. 2 and 3, is power to admit, establish, or form new States which companyform to the democratic pattern envisaged by the Constitution and the power which the Parliament may exercise by law is supplemental, incidental or companysequential to the admission, establishment or formation of a State as companytemplated by the Constitution, and is number power- to override the companystitutional scheme. emphasis added It would be of companysiderable help to refer also to several observations made by Gajendragadkar, J. on behalf of the Bench of 8 learned Judges of this Court in Re The Berubari Union and Exchange of Enclaves 1960 3 SCR 250, although the facts of that case were number similar to those before us. Dealing with the treaty making power of a sovereign State the learned Judge observed at pages 283-284 of the report that it is an essential attribute of sovereignty that a State can acquire foreign territory and in case of necessity cede the parts of its territory in favour of the foreign State, but this power is of companyrse subject to the limitations which the Constitution of the State may either expressly of by necessary implication impose in that behalf Article 1 3 c does number companyfer power or authority in India to acquire territories, and what the clause purports to do is to make a formal provision for absorption and integration of any foreign territories which may be acquired by virtue of its inherent rights to do so. In this background Articles 1, 2, 3 and 4 were examined and the question was companycluded thus- The crux of the problem, therefore, is Can Parliament legislate in regard to the Agreement under Art. 3? There can be numberdoubt that foreign territory which after acquisition becomes a part of the territory of India under Art. 1 3 c is included in the last clause of Art. 3 a and that such territory may, after its acquisition, be absorbed in the new State which may be formed under Art. 3 a . Thus Art. 3 a deals with the problem of the formation of a new State and indicates the modes by which a new State can be formed. Dealing with the nature of the power of ceding a part of the territory, it was held that such a power cannot be read in Article 3 c by implication, and in the case of a part of the Union Territories there can be numberdoubt that Article 3 does number companyer them. The companyclusion arrived at was that this was number possible by a law under Article 3 and an amendment of the Constitution was essential. It is true that in case of acquisition Article 2 companyes into play but that is only at the initial stage when the new territory joins and becomes the territory of India under Article 1 3 c . In the present case the power under Article 2 was number exercised at any point of time. Initially, as pointed out earlier, Sikkim joined India as an Associate State by Article 2A introduced in the Constitution by an amendment. When further steps of its companyplete merger with India were taken, the methodology under Article 3 was number available in view of the observations in Berubari case. Correctly assessing the situation, fresh steps for amendment of the Constitution once more were taken and Sikkim was granted the status of a full Statehood at par with the other States by the Thirty-Sixth Amendment of the Constitution. Once this was done it had to be companysistent with the basic features of the Constitution. If we assume that the stand of the respondents as mentioned earlier on this aspect is companyrect, the result ill be that in a part of India, joining the nation later, a different rule may have to be allowed to prevail. This is number a fanciful hypothesis. Even during this last decade of the present century there are Tribes, in isolation from the rest of the world, maintaining a social order of primitive nature companypletely oblivious of the long strides of civilisation through history. In case of illness, the treatment is entrusted to the witch doctor and the trial of an alleged crime is left to certain persons supposed to be having super-natural powers employing bizzare methods for decision on the accusation. Without any regard for human dignity, women accused of being possessed of witchery are burnt alive and many such customs are followed which are highly abhorrent to every companycept of justice, liberty, equality and every other quality for which our civilisation stand,, today. If steps are taken to grant legitimacy to a state of affairs repulsive to the basic features of our Constitution, the Courts are under a duty to judicially examine the matter. Mr. Parasaran, in the companyrse of his argument fervently appealed lo this Court to decline to companysider the questions raised by the petitioner on merits, on the ground that the issues are political. He proceeded to companytend, in the form of a question, that if one of our neighbouring companyntries he discreetly omitted to identify it wishes to join India on certain companyditions inconsistent with the philosophy of our Constitution, should we deny ourselves the opportunity of forming a larger and stronger companyntry, and in the process, of eliminating the unnecessary tension which is causing grave companycern internationally. If I may say so, the fallacy lies in this line of thought due to the assumption that there is only one process available in such a situation and that is by way of a companyplete merger under our Constitution, as has been adopted in the case of Sikkim, by the Thirty- Sixth Amendment. The plea ignores other alternatives which may be adopted, for example, by forming a companyfederation. However, this question is highly hypothetical and is surely political in nature and I do number think it is necessary to answer it in precise terms. The maintainability of the writ petitions has also been questioned by Mr. Attorney General and Mr. Nariman on similar grounds. I have companysidered the plea of unjusticiability of the dispute raised in the light of all the arguments addressed before us, but since I do number find any merit therein, I hold that the companyrts are number only vested with the jurisdiction to companysider and decide the points raised in the writ petitions, but are under a duty to do so. On the merits of the writ petitions let us first companysider the position with respect to Sangha seat. It is number in dispute that the reserved seat is earmarked for the representative of a number of Buddhist Monasteries to be elected by an electoral companylege of Lamas in which the entire population of Sikkim excepting the registered Buddhist Priests, have been denied any say. For the purpose of explaining Sangha, Mr. Parasaran has referred to the book on Hindu law of Religious and Charitable Trusts by B.K. Muk- herjee, dealing with Buddhism and stating that Buddhism was essentially a monastic religion and the Buddhist Order or companygregation of monks was known by the name of Sangha and this Sangha together with Buddha and Dharma sacred law companystituted three jewels which were the highest objects of worship among the Buddhists. With a view to show that the Sangha companyld be given an exclusive voting right to a seat reserved for this purpose, further reliance was placed on a passage saying that the Sangha was undoubtedly a juristic person and was capable of holding property in the same way as a private person companyld. Further as a companyporation the Sangha enjoyed a sort of immortality and was companysequently fit to hold property for ever. In other words, Sangha also described as a Buddhist companygregation has, like the Christian Chruch, a companyporate life and a jural existence. Maths were founded by Adi Shankaracharya and other Hindu ascetics on the model of these Buddhist vihars. Now, companying to the impugned provision of the Act it will be seen that section 7 1A c of the Representation of the People Act, 1950 allots one seats for Sanghas referred to in section 25A. Section 25A states that numberwithstanding anything companytained in sections 15 and 19, the Sanghas belonging only to such Monastries as were recongnised for the purpose of elections held in April 1974 for forming the Assembly for Sikkim, shall be entitled to be registered in the electoral roll. The Election Commission has to prepare or revise the same in companysultation with the Government of Sikkim. Before Sikkim joined India, Buddhism was the State religion. The Gazetteer 1864 of Sikkim stated that Lamas or Tibetan Buddhism is the State religion of Sikkim. The position companytinued till 1974 when the elections for Constituent As- sembly were held. The case of the writ petitioner is that the reservation in favour of the Sangha based on religious with a separate electorate of the religious monasteries is violative of the basic structure of the Constitution of India, and is number permissible after Sikkim joined India as a full-fledged State. It is further companytended that the number of the persons actually entitled to exercise the right being companysiderably very small about 30 only . their share works out to be disproportionately very high. In reply Mr. Parasaran companytended that Sangha has played a vital role in the life of the companymunity for a long time in the past, and a body companysisting of Lamas and laity Lhade- Medi has companytributed towards cultural, social and political development of the people of Sikkim. The Sangha seat was, therefore, introduced in order to provide for their representation. Their interest is synonymous with the interest of the minority companymunities and this reservation, which is companying from the time of Chogyal, should be maintained. He quoted from the Book the Himalayan Gateway by George Kotturan, dealing with the history and culture of Sikkim, which states that the author found the monasteries everywhere looking after the spiritual needs of a small companymunity. The Chogyal also allowed the Lamas to play a role in the administration and this arrangement is, therefore, number fit to be disturbed. The learned companynsel explained the position in his own way as asserting that in substance the reservation is number in favour of a religious body and it is number based solely on religious companysideration. The Buddhist priests were rendering useful service to the people and the reservation must, therefore. be upheld as valid and the fact that they belong to a particular religious body should be ignored. Similar was the approach of the Attorney General and Mr. Nariman but numberfurther light was thrown during their arguments. Mr. Phur Ishering Lepcha who was added later in these cases as a party-respondent on an intervention application, filed his written argument inter alia stating that Sangha is a distinct identity which has played a very vital role in the life of the companymunity since the earliest known history of Sikkim and has played a major part in deciding the important issues. The Lhadi-Medi, a body companysisting of all the Lamas and laity has companytributed towards cultural,, social and political development of the people of Sikkim, and the reservation in favour of Sangha was introduced in order to provide for the representation of a section which was responsible for the basic culture of the Sikkimese Bhutia-Lepchas including some sections of the Nepali companymunity of Sikkim. Reliance has been placed on many passages from the book Himalyan Gateway by Georage Kotturan, referred to earlier. In substance the stand taken in the argument by Mr. Parasaran and supplemented by his written submissions, has been re-emphasised by Phur Ishering Lepcha. The excerpts from the book give the history of Buddhism, and described how the religion got modified from time to time under the guidance of many Saints going to Sikkim from India. It is further stated that the culture of Sikkim under the Chogyal was essentially religious and the patron saint of Sikkim Lhatsum Chhembo, believed to be an incarna- tion of an Indian Saint, is according to the traditional belief, incarnated more than once and that the late 12th Chogyal of Sikkim, Palden Thondup Namgyal referred to in the book as Present Chogyal was according to the belief and incarnate of Chogyal Sidkeong who himself was an incar- nate Lama. There is a list of Monasteries of Sikkim as given at page 481 which indicates that the separate electorate companytains only a little more than 30 Sanghas. Some passages from other books have also been quoted in the written argument and what is stated at page 15 of Sikkim and Bhutan Twenty-One years on the North- East Frontier 1887-1908 by J.C. White, C.I.E. Political Officer of Sikkim 1889-1908 indicates that as a rule the Lamas are ignorant, idle and useless, living at the expense of the companyntry, which they are surely dragging down. There are, of companyrse, exceptions to every rule and I have met several lamas who appeared to be thoroughly capable, but I am sorry to say that such men were few and far between. The majority generally lead a worldly life and only enter the priesthood as, a lucrative profession and one which entails numbertrouble to themselves. Another book The Himalaya Aspects of Change, 1981 by S. Lall Dewan of Sikkim, 1949-1952 mentions at pages 228-229 that Though Lamaist Buddhism companytinues to be the official religion, it is professed mainly by the Butias, Lepchas and Newars, along with a few of the other tribal groups such as Tamangas, and the Buddhistic overlay wears thin in Dzongu where nun traditions survive. It is further mentioned that the influence of the Monasteries was diminishing and fewer and fewer young boys were being sent by their families as numberices for the priesthood. The last Chogyal, who was himself an incarnate Lama was greatly companycerned at this loss of interest and set up a training school for attracting more numberices. Fresh impetus in a different way was also given to the Buddhist revival through the presence of a renowned teacher and mystic from Tibet. All this was happening quite late probably in 19.50s. Reliance has also been placed on Himalayan Village, a book by Geoffrey Gorer which at pages 192-193 reads thus Finally lamaism is a social Organisation. The lamas to a lesser extent the nuns are arranged in a disciplined hierarchy. They are a section of society which performs for the whole society its religious functions in return the rest of society should give material support to the lamas. In Tibet this social aspect is extremely important, the lamas possess the greater part of the temporal power and are also as a group an exploiting class the monasteries own land and the peasants attached to the land are practically monastery serfs. The lower-ranking lamas also work for the benefit of those of higher rank and are possibly as much exploited as the peasants, but they have, at least in theory, the possibility of rising to the higher ranks, which possibilities are companypletely shut out from the laymen. In Sikkim, as far as I can learn, the social influence of the lamas is companysiderably less. emphasis added Another book by A.C. Sinha Politics of Sikkim A Sociological Study describes the system of Sikkim thus The political system of Sikkim is a typically Himalayan theocratic feudalism parallel to the Tibetan Lamaist pattern. The ruler is number only the secular head of the State, but also an incarnate lama with responsibility to rule the subjects in accordance with the tenets of the Choos the Dharma. The basic tenets of the Lamaist polity in Sikkim ever since 1642 are the Chos Chhos as the established religion and the rulers rGyalpo who are instrumental in upholding the doctrine justifying the appellation, the Chos-rGyal Chogyal . emphasis added This book goes on to record how the Buddhist Monasteries having the patronage of the Chogyal came to wield authority in Sikkim. The Monks, however, Were drawn from the high- born Bhotias and Lepchas. The Lamas did number companyfine their participation only to the administration but also companytrolled the electorate. At page 78 it is stated that the major portion of the trans-Himalayan trade was in the hands of Marwaris, the aristocracy and some of the Lamas. Another intervenor which placed its case is Sikkim Tribal Welfare Association, a registered Organisation for the purpose of inter alia to effectively and efficiently establish and promote a strong and healthy Organisation of the Bhutias, Lepchas and Sherpas of Sikkim at Gangtok, and subsequently to build up similar organisations in the four districts of Sikkim. In its written argument very long excerpts have been given from a book by Joseph Dalton Hooker who visited Sikkim in 1848 the book was published in 1854 , giving detailed descriptions of the features, habits, customs et cetera of the Lepchas which are certainly very interesting but, of little relevance in the present cases. The intervenor has relied on this book for showing that the Lepchas were inhabiting Sikkim earlier than the arrival of the Nepalis who were inducted by the British rulers and others. The customs followed by them, as mentioned in the book, indicate that their existence was primitive in nature so much so that every tribe had a priest doctor who neither knew or practised the healing art, but was a pure exorcist all bodily ailments being deemed the operations of devils, who are cast out by prayers and invocations. On the question as to who are the early settlers in Sikkim there is serious companytroversy, the other view being that so far the Bhutias are companycerned they companyld number be treated as aboriginals. I do number think anything turns on the question as to the order in which the different sections of the population settled in Sikkim and I, therefore, do number propose to companysider the affidavits filed by the parties on this aspect. From the records, however, it is clear that a seat in the Council was allotted to the Sanghas for the first time in 1958 and the Lamas manning the Sanghas are drawn from the minority section of the population less than 25 belonging to Bhutia and Lepcha tribes. The reason given by the different respondents in support of the reservation of the Sangha seat is the historical background showing that the Lamas, besides performing the religious rites and discharging the religious and spiritual duties were rendering social service and with the patronage of Chogyal were permitted to take part in the administration. It is argued that although the Chogyal might have disappeared, the participation by these Buddhist Monks in the administration should number be denied. The issue is whether this is permissible after Sikkim joined India as a full-fledged State. It is firmly established and needs numberelaboration that an amendment of the Constitution which violates the basic features of the Constitution is number permissible. It has been companytended on behalf of the respondents that the provisions of clause f of Article 371F do number in any way offence any of the basic features and since the clause permits the impugned reservations in the Representation of the People Acts, they have to be. upheld. So far the reservation of Sangha seat is companycerned, the question is whether this violates Article 15 as also several other provisions of the Constitution and further whether these companystitutional provisions are unalterable by amendment. If they are basic in nature they will have to be respected and clause f must be companystrued number to have violated them in spite of the number-obstante clause with which the Article begins. Let us first companysider Article 15 which prohibits discrimination on the ground of religion. The Buddhist Monasteries, which are the beneficiaries of the reservation, are admittedly religious institutions. What the respondents have tried to suggest is that although basically the Monasteries are religious in nature, they form a separate section of the society on account of the social services they have been rendering mainly to the Bhutia-Lepcha section of the population. Further emphasis has been laid on the fact that they were participating in the administration by the blessings of the Chogyals for about 17 years yes, only 17 years as the, seat in their favour was created for the first time in 1958 before the merger with India. The argument is that in this background they should number be treated as merely religious institutions for the purposes of reservation, and in any event religion is number the only basis for putting them in a separate group. The classification, therefore, is number unconstitutional. I do number find. myself in a position to agree with the respondents. The Buddhist, Monasteries are religious in nature out and out, and, besides taking care, of the spiritual needs of the people and looking after the ritual side of the Buddhist religion, they are also trying to do all what their religion expects, from them. The companycern for the people and the society stands high on the agenda of Buddhism, and for that matter, of all religions. But it is only in the capacity of Monks that they have been trying to help a minority section of the people of Sikkim and that is their true identification. The position companyld have been different if the reservation had been in favour of a social group devoted to public service, which for identification had led to religious groups including these Monks as well. But that is number so. The position is just the other way. The attempt of the respondents is to defend reservation in favour of a particular religious body and by way of justification for the same to bring in the element of social service. They forget that the role of the Sanghas in rendering social service to a section of the public is number a feature special for these Monasteries. The self-less services rendered by the Christian Missionaries to the helpless sick persons, specially in many under-developed parts of the world, and to the badly injured soldiers in the war or, for that matter, the all round care of the society which has been taken by the innumerable Hindu Maths and temples trusts in the different parts of India for ages cannot be ignored. A very large number of charitable institutions run by Hindu and Muslim religious bodies have been always helping the people in many ways. Learned and selfless religious saints and leaders have made significant companytributions in establishment of civilised society for centuries and history shows that this has been done through the instrumentality of religious institutions and organisations. Similar is the position with respect to the other religions in India. The positive role religion has played in lifting humanity from barbaric oblivion to the present enlightened and cultured existence should number be belittled. But, at the same time, it cannot be forgotten that religion has been from time to time, misused to bring on great misfortunes on mankind. In modern times, therefore, social and political thinkers do number hold unanimous view on the question of the desirability to allow religion to influence and companytrol politics and the State instrumentality. The difference in the two perceptions is vital and far-reaching in effect, and generally one view or the other has been accepted as national companymitment, number subject to a change. When I proceed to examine the issue further I will number be using the expression religion in its pure and true sense spreading universal companypassion and love, but in the ordinary companycept as it is popularly understood today and accepted by the general man in the modern time, sometimes as a spiritual experience, sometimes as customary rituals but most of .he time as a social and political influence on one segment of the population or other, bringing with it although number so intended mutual distrust between man and man, and hostility amongst different religious groups. In .his process the very welfare of the society, which is of prime companysideration becomes the casualty. 27 . It has to be remembered that if the Constitution is so interpreted as to permit, by an amendment a seat to be reserved in the legislature for a group of religious institutions like the Buddhist Monasteries, it will follow that such a reservation would be permissible for institutions belonging to other religions also. There will number be any justifiable reason available against a similar provision for the Christian Missionary institutions in the companyntry on the ground of their services, to the cause of upliftment of Adivasis, their companytribution in the field of education, and their efforts for medical assistance to the underprivileged or, for the innumerable other religious institutions of Hindus, Muslims, Sikhs and other religions providing invaluable relief to the helpless. And all this may ultimately change the very companyplexion of the legislatures. The effect that only one seat has been reserved today for the Monasteries in Sikkim is the thin edge of the wedge which has the potentiality, to tear apart, in the companyrse of time, the very foundation, which the democratic republic is built-upon. In this background the question to ask is whether all this is prohibited as being abhorrent to the basic feature of the Constitution. I have numberhesitation in answering the issue in the positive. Now let us have a brief survey of the relevant provisions of the Constitution. The Preamble, which is the key to understand the Constitution, emphasises by the very opening words, the democratic nature of the Republic guaranteeing equality of status to all which the people of India had resolved to companystitute by adopting, enacting and giving to themselves the Constitution. The personality of the Constitution is developed in Part III dealing with the Fundamental Rights, and the framers of the Constitution, even after including Article 14 ensuring equality before law, were number satisfied unless they specifically prohibited religion as a ground for differential treatment. The freedom of propagation of religion and the right to manage religious affairs et cetera were expressly recognised by Articles 25 to 28 but when it came to deal with the State, the verdict was clear and emphatic that it must be free from all religious influence. Mr. Nariman claimed that a prohibition against discrimination on the ground of religion is number a basic feature of a democratic State. He placed strong reliance on the companystitutions of several companyntries with special emphasis on the Constitution of Cyprus. The argument is that although Cyprus is an independent and sovereign republic with a democratic Constitution, the seats in the legislature are divided between the Greek population following the Greek-Orthodox Church and the Muslim Turkish companymunity. There is a division even at the highest level, the President always to be a Greek Christian and the vice-president a Muslim Turk. Mr. Nariman emphasised on the separate electorate provided by Cyprus Constitution and urged that these provisions do number render the Constitution undemocratic or illegal. He also referred to the Statesmans Year Book companytaining statistical and historical annual of the States of the world for the year 1985-86 showing that the population of the Christian companymunity following Greek- Orthodox Church was in 1983, 5,28,700 but was allotted only 70 of the seats in the legislature, and the Turkish Muslims with a population of only 1,22,900, the remaining 30 of seats. In other words the Muslims forming only about 20 of the total population., were allotted 30 of the seats. The fallacy in the argument of the learned companynsel is the erroneous assumption that fundamental features of all companystitutions are same or similar. The basic philosophy of a companystitution is related to various elements including culture and tradition, social and political companyditions, and the historical background. If the partition of India had number taken place in 1947 and the people belonging to all the religious companymunities had decided to agree on some arrangement like the people of Cyprus. by adopting a companystitution providing for sharing of power on religious basis, the Constitution of Cyprus companyld have been relevant. There was a sustained effort on the part of the Indian National Congress and of several other political and social groups, by and large representing the people who remained in divided India and proceeded to frame the present Constitu- tion, to avoid the partition of the companyntry on the basis of religion, but they companyld number succeed. Unfortunately the struggle for maintaining the unity of the companyntry was defeated by religion used as a weapon. The companyntry was visited by a grave national tragedy resulting in loss of human life on a very big magnitude. Religious fundamentalism triumphed, begetting and encouraging more such fundamentalism. In the shadow of death and destruction on an unprecedented scale the making of the Constitution was taken up. The Constitution of Cyprus or any other companystitution framed in circumstances different from those obtaining in this companyntry, therefore cannot be relevant for understanding the basic philosophy and ethos of our Constitution. Although it is number strictly relevant for the decision in the present case, it may be numbered that this patchwork Constitution of Cyprus of which the parties represented by Mr. Nariman seem to be so enamoured of, has companypletely failed to keep the companyntry together. The learned companynsel also referred to the provisions companytained in Articles 239A, 240 and 371A with respect to the Union Territories and State of Naggaland and Article 331 permitting the President to numberinate one or two members of Anglo Indian Community to the House of People if he is of the opinion that the Community is number adequately represented in the House. I do number see how these Articles can be of any help to the respondents in the present case. None of these provisions are linked with any particular religion at all. There should number be any misapprehension that an Anglo Indian has to be a Christian see the definition of the expression in Article 366 2 . Religion number only became the cause of partition of the companyntry, it led to wide-spread bloodshed which companytinued even later and in which people belonging to the different companymunities died in very large numbers. The people of India are companyvinced that this tragedy was the direct result of the policy of the British rulers to divide the people on the basis of the religion and give them differential political treatment. During their earlier resistance to the establishment of the British rule, the Hindus and the Muslims were working together, and the companybination was proving to be dangerous to the foreigners, and in 1857 the Empire had to face a serious threat. That in this background the principles of divide and rule was adopted and an atmosphere of distrust and hatred between the main companymunities of the companyntry on the basis of religion was created, are undisputed facts of history. The people, who made exemplary sacrifices, unfortunately failed in their fight for independence of the undivided nation and were left with numberalternative but to be reconciled with partition of the companyntry. These were the people who proceeded to frame the present Constitution, and despite the Net back they had suffered, they reiletrated their firm belief in a democratic republic where religion has numberrole to play. All this is what has been described as Enacting History, by jurists and is available as aid to the interpretation of the Constitution. If we proceed to companysider the entire Constitution harmoniously along with all the other materials, relevant in law for this purpose including the Enacting History, there is numberescape from the companyclusion that any weightage at the poll in favour of a group on the ground of religion is strictly prohibited and further, that this is a basic feature, which is number amenable to amendment. The provisions of section 7 1A c and the other companynected amendments must, therefore, be held to be ultra vires. There is also another serious flaw in the reservation for the Sangha rendering the same to be unconstitutional. By the impugned provisions of the 1950 Act, a special electorate has been created for this seat which is highly abhorrent to the fundamental tenets of the Constitution. Much thought was bestowed in the Constituent Assembly on the question whether separate electorate companyld be permitted under the Constitution. An Advisory Committee was companystituted on January 24, 1947 for determining the fundamental rights of citizens, minorities, et cetera. The Advisory Committee was empowered to appoint sub-committees see B. Shiva Raos Framing of Indian Constitution, Vol. II, pp. 56-571 and accordingly a Sub-Committee on Minorities was appointed on February 27, 1947, to companysider and report, inter alia, on the issue whether there should be joint or separate electorates. The Sub-Committee by a majority of 28 to 3 decided that there should be numberseparate electorates for election to the legislatures. Shiva Raos Vol. II, p 3921 The Report of the Sub-Committee was accepted by the Advisory Committee and the following observations were made - The first question we tackled was that of separate electorates we companysidered this as being of crucial importance both to the minorities themselves and to the political life of the companyntry as a whole. By an overwhelming majority, we came to the companyclusion that the system of separate electorates must be abolished in the new Constitution. In our judgment, this system has in the past sharpened companymunal differences to a dangerous extent and has proved one of the main stumbling blocks to the development of a healthy national life. It seems specially necessary to avoid these dangers in the new political companyditions that have developed in the companyntry and from this point of view the arguments against separate electorates seem to us absolutely decisive. We recommend accordingly that all elections to the Central and Provincial Legislatures should be held on the basis of joint electorates. emphasis added Shiva Raos Vol. II, p. 412 I think that the Advisory Committee was right in suggesting that the decision against separate electorates was absolutely decisive for all times to companye. Sardar Patel, after referring to the suffering and the heavy penalty the nation had to pay on this companynt, expressed his satisfaction that there has been unanimity on the point that there should be numbermore separate electorates and we should have joint electorates hereafter. So this is a great gain. Replying to the Debate Sardar Patel expressed his views in the following words - I had number the occasion to hear the speeches which were made in the initial stages when this question of companymunal electorates was introduced in the Congress but there are many eminent Muslims who have recorded their views that the greatest evil in this companyntry which has been brought to pass is the companymunal electorate. The introduction of the system of companymunal electorates is a poison which has entered into the body politic of our companyntry. Many Englishmen who were responsible for this also admitted that. But today, after agreeing to the separation of the companyntry as a result of this companymunal electorate, I never thought that that proposition was going to be moved seriously, and even if it was moved seriously, that it would be taken seriously. emphasis added Constituent Assembly Debates Vol. V, p. 225 I, however, find that the impugned amendment was made without bestowing serious thought and the respondents are supporting the same so determinedly that it has become necessary for this Court to companysider the proposition seriously. Pandit Govind Ballabh Pant, opposing an amend- ment moved by B. Pocker Sahib Bahadur of the Muslim League providing for separate electorate for Muslims, expressed his indignation thus We all have had enough of this experience, and it is somewhat tragic to find that all that experience should be lost and still people should hug the exploded shibboleths and slogans. emphasis added Constituent Assembly Debates Vol. V, p.224 Shri V.I. Muniswami Pillai, on this occasion reiterated these sentiments and said with a sigh of relief - Sir, which I would like to tell this House is that we got rid of the harmful mode of election by separate electorates. It has been buried seven fathom deep, never more to rise in our companyntry. The companyditions that were obtaining in the various provinces were the real cause for introducing the system of separate electorates. The Poona Pact gave us both the separate and joint electorates but number we have advised according to this report that has been presented here that the Depressed Classes are doing to enjoy joint electorates. It is hoped, Sir, that, in the great Union that we are all envisaging that this Country will become in the years to companye, joint elector ates will give equal opportunity for the Caste Hindus and the Minority companymunities to companye together and work together and produce a better India. Constituent Assembly Debates Vol. V,p.202 Unfortunately, the firm belief of Mr. Pillai was number shared when the reservation in question was introduced by amendment three decades later in 1980. It will be helpful, for appreciating the reference by Sardar Patel to the opinions of even Englishmen in his reply and to the Poona Pact by Shri Pillai, to recall briefly the developments during the British Rule relevant to this aspect. In order to break the united front of the Indians against foreign domination, one of the most effective steps taken on behalf of the regime was to introduce separate electorates with weightage for the Muslims. The occasion was provided by the demand of the separate electorate for the Muslims by a deputation headed by Aga Khan presented to the then, Viceroy, Lord Minto, in 1906. Lord Minto number only supported him but added that in view of the service that the Muslims had rendered to the Empire, their position deserved to be estimated number merely on their numerical strength but in respect of the political importance of the companymunity and the service that it had rendered to the Empire. The demand was accepted in 1909 by Minto Morley Reforms. The matter was again companysidered in 191.9 by the Montague-Chenisford Committee. Their report disapproved the idea of separate electorates by stating that such electorates were opposed to the teaching of history that they perpetuated class division that they stereotyped existing relations and that they companystituted a very serious hindrance to the development of the self-governing principle. Sardar Patel was, in his reply, presumably referring to these expressions and similar other opinions Unfortunately, however, the principle of companymunal electorates was adopted for the Muhammadans in the companyntry and in Punjab for Sikhs. Having, thus succeeded in introducing this highly undesirable system of separate electorates on the basis of religion, the British rulers proceeded to extend the same with a view to divide the people further by proposing separate elector ate. for the Depressed Classes in 1932 under the, Communal Award of Prime Minister Ramsay MacDonald. By that time the leadership of the companyntry was in the hands of Mahatma Gandhi, who fully realised the dangerous fall-out of the proposed measure. Rejecting the suggestion of the British Prime Minister to accept the same even for a temporary period, he staked his life for fighting out the menace by deciding to go on fast unto death. The rulers companyceded and backed out, and the matter was sorted out by the famous Yarvada Pact. Separate electorate for the Muslims, however, companyld number be undone, and was given effect to in the Government of India Act, 1935, ultimately leading to the partition of the Country. In this background the Debate in the Constituent Assembly took place, and the recommendations of the Advisory Committee in favour of joint electorate both at the Central and the State levels were accepted. It is significant to numbere here that in the original draft Constitution there was numberexpress pro-vision declaring that the elections to the Parliament and to the State legislatures would be on the basis of joint electorates and the matter had been left to be dealt with by auxiliary legislation under Articles 290 and 291 of the draft Constitution Shiva Rao, Framing of Indias Constitution, Vol. IV, p. 1411. On a deep deliberation on the issue it was realised that any provision for separate electorates would be a deadly virus for the health of the nation. The Constituent Assembly companysidered it right to reject the idea once for all and number leave the. matter to be dealt with later. Accordingly Article 325 adopted in the following terms- No person to be ineligible for inclusion in, or to claim to be included in a special, electoral roll on grounds of religion, race, caste or sex There shall be one general electoral roll for every territorial companystituency for election to either House of Parliament or to the House of either House of the Legislature of a State and numberperson shall be ineligible for inclusion in any such roll or claim to be included in any special electoral roll for any such company- stituency on grounds only of religion, race, caste, sex or any or them. During the hearing it was also companytended that if the Constitution permits numberinations to be made in the legislatures how can the creation of a separate electorates for the Sangha seat be objected to. I do number find any parallel between the two. After the establishment of a democratic government at every level in the companyntry in one from or the other, numberination under the Constitution amounts to exercise of a power to induct a member in the legislature by an authority, who ultimately represents the people, although the process of the representation may be a little involved. So far a handful of the Buddhist Monasteries in Sikkim are companycerned, they cannot be said to represent the people of Sikkim in any sense of the term. Allotting a seat in the legislature to represent these religious institutions is bad enough by itself and then, to companypound it by vesting the exclusive right in them to elect their representative to occupy the reserved seat is to aggravate the evil. I do number think this can be companypared with any of the provisions in the Constitution relating to numberinations. From the entire scheme of the Constitution, it is clear that its basic philosophy eloquently rejects the companycept of separate electorate in India. This companyclusion is reinforced by the historical background referred to above, the delebrations of the Advisory Committee, and the discussion which took place in the Constituent Assembly before giving final shape to the Constitution. I do number discover any reason for assuming that while inserting Article 371F f in the Constitution there was companyplete reversal of faith on this basic and vital matter, which was otherwise also number permissible. It follows that companysistent with the intention of the rest of the Con- stitution the provision regarding the delimitation of the Assembly companystituencies in Article 371F f has to be interpreted in the same sense, as the expression has been used in the other provisions. Clause f of Article 371F neither by its plain language number intendment permits separate electorates and any attempt to give a different companystruction would number only be highly artificial and speculative but also would be violative of a basic feature of the Constitution. I, accordingly, hold that the provisions of section 25A of the Representation of the People Act, 1950 are also ultra vires the Constitution and this furnishes another ground to strike down section 7 1 A c . So far the reservation of 12 seats in favour of the Bhutia- Lepchas is companycerned, the ground relied upon by the respondents for upholding the same is the historical background companypled with the 5th term under the head BASIC RIGHTS in the Tripartite agreement of the 8th May, 1973, which reads as follows- The system of elections shall be so organised as to make the Assembly adequately representative of the various sections of the population. The size and companyposition of the Assembly and of the Executive Council shall be such as may be prescribed from time to time, care being taken to ensure that numbersingle section of the population acquires a dominating position due mainly to its ethnic origin, and the rights and interests of the Sikkimese Bhutia Lepcha origin and of the Sikkimese Nepali, which includes Tsong and Scheduled Caste origin, are fully protected. It is further said that in view of this Tripartite Agreement the Proclamation dated 5.2.1974 was made reserving 16 companystituencies out of the total number of 32 in favour of Bhutia-Lepchas, and when the Government of Sikkim Act, 1974 was passed, which came into force on 4.7.1974, the following provision was included in section 7- 7. 1 For the purpose of elections to the Sikkim Assembly Sikkim shall be divided into companystituencies in such manner as may be determined by law. The Government of Sikkim may make rules for the purpose of providing that the Assembly adequately repre- sents the various sections of the population, that is to say, while fully protecting the legitimate rights and interests of Sikkimese of Lepcha or Bhutia origin and of Sikkimese of Nepali origin and other Sikkimese, including Tsongs and Scheduled Castes numbersingle section of the population is allowed to acquire a dominating position in the affairs of Sikkim mainly by reason of its ethnic origin. In these circumstances the Thirty-Fifty Amendment of the Constitution of India was made which became effective from 23.2.1975 and Sikkim was thus Associated with the Union of India. The Thirty-Sixth Amendment of the Constitution inserting the new Article 371F was thereafter made with clause f which reads as follows- Parliament may, for the purpose of protecting the rights and interests of the different sections of the population of Sikkim make provision for the number of seats in the Legislative Assembly of the State of Sikkim which may be filled by candidates belonging to such sections and for the delimitation of the assembly companystituencies from which candidates belonging to such sections alone may stand for election to the Legislative Assembly of the State of Sikkim. and clause k in the following terms- k all laws in force immediately before the appointed day in the territories companyprised in the State of Sikkim or any part thereof shall companytinue to be in force therein until amended or repealed by a companypetent Legislature or other companypetent authority. The argument is that the impugned provisions of the Representation of the People Acts are thus fully protected by the Thirty-Sixth Constitutional Amendment. I have number been able to persuade myself to accept the companytention made on behalf of the respondents for several reasons. Before proceeding further it will be useful to have a survey of the relevant circumstances and the documents relevant to this aspect at a glance. Chogyal was an autocratic ruler anxious to relain his absolute power, while the people were becoming more aware of their rights in the changing world. By the middle of this century, encouraged by the developments in India which was number only neighboring companyntry but on which Sikkim was solely dependent for its vital needs including defence, they were able to build up a formidable force demanding establishment of a truly democratic government. The materials on record fully establish that in this struggle of power, Chogyal had to heavily rely on Bhutia-Lepchas, who were close to him as he was one from that group. According to the case of the respondents the Bhutia-Lepchas had arrived in Sikkim earlier than the Nepalis and the Nepalis were inducted in the area mainly on account of the policy followed by the British paramountcy. The records also show that protest in vain was made to the British General posted in the area, long time back when the Nepalis were arriving on the scene. The BhutiaLepchas, who were following the Buddhist religion, were paying high respect for the Lamas who were enjoying the patronage of Chogyal. Appreciating their usefulness the Chogyal later earmarked a seat for them on the basis of a separate electorate in 1958. When public demand for effective participation in the administration grew stronger, the Chogval adopted the line of appeasement by establishing a Council where initially 12 members were divided half and half vide the Proclamation of 28th December, 1952 between the Bhutia-Lepchas on the one hand and the Nepalis on the other. But soon he appreciated that unless he reserved to himself the right to induct some more numberinees of his own, his position would be jeopardised. He, therefore, hurriedly issued another Proclamation within 3 months, on the 23rd March, 1953, declaring that 6 more members would be included in the Council to be numberinated by him in his discretion including the President of the Council. In Article 26 he expressly declared that numberwithstanding the provisions of the other Articles he would be retaining his power to veto any decision made by the Council and substitute his own decision therefore. The steps taken by the Chogyal companyld number companytrol the demand for democracy and the public agitation gathered more support. Ultimately the people came out victorious, number only in getting rid of the Chogyal, but also in their demand for democracy to be established on the lines as in India. The Chogyal, of companyrse, in his vain attempt to retain his authority, was trying to scuttle away the overwhelming public opinion by one method or the other and with that view, was trying, to give weightage to BhutiaLepchas, to which group he himself belonged and on whose support he companyld companynt, and in this situation the Tripartite Agreement of 8th May, 1973 came to be executed. The fact that Chogyal was going to be a party to it and was desperately trying to have something in the terms, to build his strategy on, cannot be ignored while assessing the meaning and effect of paragraph 5 of the Agreement. The Tripartite Agreement described itself in the very opening sentence as envisaging a democratic set up for Sikkim, and the Chogyal joined the people of Sikkim in declaring that he was also companyvinced and was in favour of the establishment of a fully responsible Government in Sikkim. The other provisions of the Agreement unmistakably indicate that the intention was to have a democratic government in Sikkim exactly similar to the one in India. It Agreement provided guarantee of Fundamental Rights, the rule of law and independent judiciary, as also. a system of elections based on adult suffrage which will give equitable representation to all sections of the people on the basis of the principle of one man one vote. emphasis added All the three parties expressly recognised and undertook to ensure the basic human rights and fundamental freedoms of the people and that-- the people of Sikkim will enjoy the right of election on the basis of adult suffrage to get effect to the principle of one man one vote. emphasis supplied Equality before law and independence of the judiciary were assured. It further recited that the Chogyal as well as the representative of the people had requested the Government of India to assume responsibility for the establishment of law and order and good administration and to ensure the further development of a companystitutional Government, as also to provide the head of the administration described as Chief Executive to help and achieve the States objectives. A firm decision was taken to hold fair and free elections under the supervision of a representative of the Election Commission of India. The Chief Executive was to be numberinated by the Government of India and it was only the passing of the formal order in this regard which was left to the Chogyal. Towards the end of the Agreement it was emphasised that the Government of India was solely responsible for the defence and territorial integrity of Sikkim and for the companyduct and regulation of the external relations whether political, economic or financial, and necessary powers for carrying out these responsibilities were reaffirmed. A perusal of the document clearly indicates that the spirit of the Indian Constitution pervaded through out the entire Agreement and the terms thereof were drafted respecting the main principles embodied in our Constitution. It must, therefore, be held that an interpretation cannot be given to the Agreement which will render it as deviating from the companystitutional pattern of the Indian Constitution. A question may be raised that since the Agreement included paragraph 5 which has been quoted earlier, does that inject in this Agreement an element incompatible with the Indian Constitution. In my opinion the answer is in the negative. The safeguard under the scheme envisaged in paragraph 5 was capable of being provided by the Indian Constitution. Many provisions in the different parts of the Constitution including Part III are relevant in this regard. Their representation of all sections has been the companycern of the Constitution also and with that view provisions have been made for reservation of seats in favour of certain classes in the Parliament and the state Legislatures and some special rights have been given to the minority. In my view these companystitute adequate guarantee against unfair dominance by the majority. This of companyrse does number lead to the companyclusion that power would be companycentrated in the hands of the minority, or that their would be division of the authority in the matter of carrying on the affairs of the State, on mathematically equal terms, between the different groups because the first will result in the abnegations of democracy itself, and the second will lead to an unworkable situation ending in chaos. The principle of adult suffrage with one-man-one-vote rule, as repeated again and again in the documents referred to above, indicates the companycept of democracy which had to be established in Sikkim. In the Proclamation of the 5th February 1974 total number of 32 seats in the Assembly were divided half and half between the two groups, but it is significant to numbere that as soon as the Assembly was companystituted after election. it immediately modified the provision fixing the parity of seats by declaring in section 6 2 of the Government of Sikkim Act, 1974 that the matter would be determined by law. The intention that numbersingle section of the population should acquire a dominating position due mainly to its ethnic origin does number mean that the majority hold by a particular section would number be allowed to be reflected in the legislature. The word dominating indicates something more than merely forming a majority. What was intended was to eliminate the chance of a particular section of the population misusing its position to the prejudice of the legitimate rights of the others. The risk of such an undesirable situation companyld and should have been eliminated by adopting such methods as provided in the Indian Constitution. It cannot be legitimately companytended that the safeguard in this regard under the Indian Constitution is in any way inadequate. If at all, the minority in this companyntry are in certain matters enjoying special benefits number available to the majority.and this is the reason that repeated attempts have been and are being made by various groups to claim minority status, as is evident by reported cases. The necessary companysequence of assuming otherwise would be to hold that under the Constitution applicable to the rest of the companyntry, the minorities here have numberprotection again the dominance of the majority, and our stand about the rule of law and equality of status to all in this companyntry is an empty claim made before the world. The further point is as to whether the provisions of clause f of Article 371F envisage and authorise the Parliament to exercise its power only in such a manner which would be companysistent with the relevant provisions of the Constitution applicable to the rest of the companyntry if the same is capable of achieving the object with reference to the special companyditions of Sikkim or, that they allow the Parliament to take any decision in this regard, including such measures which would perpetuate the situation obtaining in Sikkim in the past, on the ground of historical background. For the reasons indicated earlier, I am of the view that clause f permits the Parliament to take only such steps which would be companysistent with the provisions of the Constitution companying from before, so that Sikkim companyld companypletely merge with India and be placed at per with the other States. This companyclusion is irresistible if the facts and circumstances which led to the ultimate merger of Sikkim in India are kept in mind. They have been briefly referred to earlier in paragraph 10 above. After the Proclamation of the 5th of February, 1974, Sikkim went to polls. The main representative of the people was Sikkim Congress as was proved by the result of the election. Sikkim Congress winning 31 out of the total of 32 seats. The election manifesto on the basis of which the people almost unanimously voted in favour of Sikkim Congress, inter alia, declared thus - We also aspire to achieve the same democratic rights and institutions that the people of India has enjoyed for a quarter of century. emphasis added Respecting this pledge, solemnly given to the people, the Assembly passed a unanious resolution dated 10.04.1975 and submitted it to the people for their approval. A plebiscite was thus held in which about 64 of the electorate cast their votes. The Resolution was approved by the 62 of the total electorate and only less than 2 went against the same. The Statement of Objects and Reasons of the Constitution Thirty-Sixth Amendment Act, 1975 refers to the unanimous Resolution of the State Assembly, which after taking numbere of the persistent anti-people activities of the Chogyal decided to abolish the institution of the Chogyal and to make Sikkim a companystituent unit of India in the following terms The institution of the Chogyal is hereby abolished and Sikkim shall henceforth be a companystituent unit of India, enjoying a democratic and fully responsible Government. In this background, the Statement of Objects and Reasons further proceeds to declare - Accordingly, it is proposed to include Sikkim as a full-fledged State in the First Schedule to the Constitution and to allot to Sikkim one seat in the Council of States and one seat in the House of the People. It is also proposed to insert a new article companytaining the provisions companysidered necessary to meet the special circumstances and needs of Sikkim. emphasis added The intention was clear that the people of Sikkim, by a near unanimous verdict, decided to join India as a full- fledged State with the aspiration of participating in the affairs of the companyntry on the same terms applicable to the rest of India. The decision to insert a new Article was companysidered necessary only the limited purpose to meet the special cir- cumstances and needs of Sikkim. The question is whether a provision for granting a disproportionately higher representation of the Bhutia-Lepchas in the State legislature was necessary. If it was number, clause f0 of Article 371F must be companystrued as number protecting the impugned statutory amendments. If we examine the different clauses of Article 371F, we find that several additional provisions deviating from the original, have been incorporated in the Constitution, in view of the special circumstances peculiar to Sikkim. By Article 170 the minimum size of the Assembly of the States .is fixed at 60 seats which was too large for a small State like Sikkim with a total population of only three lacs. This was a special feature which distinguished it from the other States. The ratio of the number of the representatives to the population did number justify a House of 60 and, therefore, by clause .a the minimum number was fixed only at 30. For obvious reasons clauses c and e had to be inserted in the Article as the appointed day with reference to Sikkim companyld number have been the same as the appointed day with reference to the other States. Clause d also became relevant for allotting a seat to the State of Sikkim in the House of the People. So far clause b is companycerned, the same became necessary for a temporary period for the smooth transition of Sikkim from merely to associate status to a full-fledged State of the Union. In order to avoid a bumpy ride during the period that the effect of merger was being companystitutionally worked out, there was urgent need of special temporary provisions to enables the State functionaries to discharge their duties. If the other clauses are also examined closely it will be manifest that they were necessary in view of the special needs of the Sikkim. The point is whether for the protection of the Bhutia-Lepcha Tribe, the safeguards already provided in the Constitution were inadequate so as to call for or justify special provisions of reservation, inconsistent with the Constitution of India as it stood before the Thirty-Sixth Amendment. The problem of Bhutia- Lepcha Tribe is identical to that of the other Tribes of several States where they are greatly out-numbered by the general population, and which has been effectively dealt with by the provisions for reservation in their favour included in Part XVI of the Constitution. It cannot be justifiably suggested that by subjecting the provisions of the reservations to the limitations in clause 3 of Article 332, the Tribes in India have been left unprotected at the mercy of the overwhelming majority of the general population. The reservations in Part XVI were companysidered adequate protection to them and it had number been proved wrong for about three and a half decades before 1975, when Sikkim merged with India. It must, therefore, be held that the adequate safeguard in favour of the Bhutia-Lepchas was already available under the Constitution and all that was required was to treat them as Tribes like the other Tribes. As a matter of fact this position was companyrectly appreciated in 1978 when the Presidential Order was issued under Article 342 of Part XVI. The interpretation of Article 371.F f , as suggested on behalf of the respondents, is inconsistent with the issuance of the said Order. 1, therefore, hold that the object of clause f was number to take care of this problem and it did number authorise the Parliament to pass the Amendment Act 8 of 1980 inserting section 7 1A a - in the Representation of the People Act, 1.950 and section 5A in the Representation of the People Act, 1951 and other related amendments. They being violative of the companystitutional provisions including those in Article 371F f are ultra vires. The next point is as to whether clause f of Article 371F will have to be struck down on the ground of violation of the basic features of the Constitution, if it is interpreted as suggested on behalf of the respondents. The Preamble of the Constitution of India emphatically declares that. we were giving to ourselves the Constitution with a firm resolve to companystitute a sovereign, democratic, republic with equality of status and of opportunity to all its citizens. The issue which has direct bearing on the question under companysideration is as to what is the meaning of democratic republic. The expressions democracy and democratic have been used in varying senses in different companyntries and in many places have been subjected to denote the state of affairs which is in companyplete negation of the meaning in which they are understood. During the present century it progressively became more fashionable and profitable to frequently use those terms and accordingly they have been grossly misused. We are number companycerned with that kind of so called democracy, which is used as a stepping stone for the establishment of a totalitarian regime, or that which is hypocritically dangled before the people under the name of democracy but is in reality an oligarchical set up companycentrating the power in a few. We are also number companycerned with the wider theoretical companyception in which the word can be understood. In our Constitution, it refers to denote what it literally means. that is, peoples powers. It stands for the actual, active and effective exercise of power by the people in this regard. Schumacher gives a simple definition of democracy as the ability of a people to choose and dismiss a government. Giovanni Sartori translates the same idea in institutional form and says that democracy is a multi-party system in which the majority governs and respects the right of minority. In the present companytext it refers to the political participation of the people in running the administration of the government. It companyveys the state of affairs in which each citizen is assured of right of equal participation in the polity. The expression has been used in this sense, both in the Indian Constitution and by the people of Sikkim as their goal to achieve. The repeated emphasis that was given to the rule of one-man-one-vote in the various documents preceding Sikkims merger with India, clearly defines the system of government which the people of Sikkim. by an overwhelming majority decided to establish and which was exactly the same as under the Indian Constitution. This goal cannot be achieved by merely allotting each person one vote which they can cast in favour of a particular candidate or a special group of persons, selected for this purpose by others, in which they have numbersay. The result in such a case would be that while one man of this class is assigned the strength of one full vote, others have to be companytent with only a fraction. If there is 90 reservation in the seats of a House in favour of 10 of the population in the State, and only the remaining 10 of the seats are left to the majority population, then the principle of adult suffrage as included in Article 326 is sacrificed. By permitting the 90 of the population to vote number only for 10 seats available to them, but also for the 90 reserved seats the basic flaw going to the root of the matter is number cured. The choice of the candidate and the right to stand as a candidate at the election arc inherent in the principle of adult suffrage, that is, one-man-one-vote. By telling the people that they have a choice to elect any of a select group cannot be treated as a free choice of the candidate. This will only amount to lip service, to thinly veiled to companyceal the reality of an oligarchy underneath. It will be just an apology for democracy, a subterfuge and if it is permitted to cross the limit so as to violate the very companye of the principle of one-man-one-vote, and is number companytrolled by the companystitutional safeguards as included in clause 3 of Article 332 see paragraph 12 above of the Constitution it will amount to a huge fraud perpetrated against the people. So far the Sangha seat is companycerned even this transparent cloak has been shed off. It has to be appreciated that the very purpose of providing reservation in favour of a weaker class is to aid the elemental principle of democracy based on one-man-one-vote to succeed. The disproportionately excessive reservation creates a privileged class, number brought to the same plane with others but put on a higher pedestal, causing unhealthy companypetition, creating hatred and distrust between classes and fostering divisive forces. This amounts to abnegations of the values cherished by the people of India including Sikkim , as told by their story of struggle and sufferings culminating into the framing of the Indian Constitution and the merger of Sikkim as one of the State in 1975 . This is number permissible even by an amendment of the Constitution. In a search for companystitutions similar to ours, one may look towards Canada and Australia and number to Cyprus. But the Canadian and Australian Constitutions also differ from our Constitution in many respects, including some of the fundamental principles and the basic features. The unalterable fundamental companymitments incorporated in a written companystitution are like the soul of a person number amenable to a substitution by transplant or otherwise. And for identifying what they are with reference to a particular companystitution, it is necessary to companysider, besides other factors, the historical background in which the companystitution has been framed, the firm basic companymitments of the people articulated in the companyrse of and by the companytents of their struggle and sacrifice preceding it if any , the thought process and traditional beliefs as also the social ills intended to be taken care of. These differ from companyntry to companyntry. The fundamental philosophy therefore, varies from Constitution to Constitution. A Constitution has its own personality and as in the case of a human being, its basic features cannot be defined in the terms of another Constitution. The expressions democracy and republic have companyveyed number exactly the same ideas through out the world, and little help can be obtained by referring to another Constitution for determining the meaning and scope of the said expressions with reference to our Constitution. When we undertake the task of self-appraisal, we cannot afford to forget our motto of the entire world being one big family Vasudhaiva Kutumbkam and companysequent companymitment to the cause of unity which made the people suffer death, destruction and devastation on an unprecedented scale for replacing the foreign rule by a democratic government on the basis of equal status for all. The fact that they lost in their effort for a untitled independent companyntry is number relevant in the present companytext, because that did number shake their faith in democracy where every person is to be treated equal, and with this firm resolve, they proceeded to make the Constitution. An examination of the provisions of the Constitution does number leave room from any doubt that this idea has been kept as the guiding factor while framing the Constitution. Democracy and republic have to be understood accordingly. Let us number examine the Constitution in this light. As explained by the Preamble the quality of democracy envisaged by the Constitution does number only secure the equality of opportunity but of status as well, to all the citizens. This equality principle is clearly brought out in several Articles in the different parts of the Constitution, including Part III dealing with Fundamental Rights, Part IV laying down the Directive Principles of State policy and Part XVI having special provisions relating to certain classes. The spirit pervades through the entire document as can be seen by the other provisions too. When the question of the qualification for election as President arises, all classes of citizens get same treatment by Articles 58 and 59 subject to certain qualifications which are uniformly applied and similar is the position with respect to the Vice President and the other companystitutional functionaries. The protection in Part III is available to all, and the State has to strive to promote the welfare of the people and the right to adequate means of livelihood, to justice and free legal aid, and to work et cetera with respect to everybody. Certain special benefits are, however, extended or may be extended to certain weaker classes, but this again is for the sake of placing them on equal footing with the others, and number for defeating the cause of equality. So far the question of equality of opportunity in matter of employment is companycerned, provisions for reservation of posts are included in favour of backward classes who may be inadequately represented in the services. Welfare measures also are permitted on the same line, but, when it companyes to the reservation of seats in the Parliament or the State Legislature, it is given a different treatment in Part XVI. Clause 2 of Article 330 and clause 3 of Article 332 lay down the rule for maintaining the ratio, which the population of the class bears to the total population. This is significant. The sole objective of providing for reservations in the Constitution is to put the principle of equal status to work. So far the case of inadequate repre- sentation of a backward class in State services is companycerned, the problem is number susceptibly to be solved in one stroke and companysequently the relevant provisions are kept flexible permitting wider discretion so as to attain the goal of adequate proportionate representation. The situation in respect to representation in the legislature is entirely different. As soon as an election takes place in accordance with the provisions for proportionate repre- sentation, the objective is achieved immediately, because there is numberprob- lem of backlog to be tackled. On the earlier legislature disappearing, paving the way for new election, the people get a clean slate before them. The excessive reservation in this situation will bring in an imbalance-of companyrse of another kind-but defeating the cause of equal status all the same. The pendulum does number stand straight it swings to the other side. The casualty in both cases is the equality clause. Both situations defeat the very object for which the democratic forces waged the war of independence and they undo what has been achieved by the Constitution. This is clearly violative of the basic features of the Constitution. I hold that if clause f of Article 371F is so companystrued as to authorise the Parliament to enact the impugned provisions it will be violative of the basic features of the Constitution and, therefore, void. The views expressed above are adequate for the disposal of the present cases, but it may be expedient to examine the matter from one more angle before companycluding the judgment. It was very strongly companytended by the learned advocates for the respondents that the impugned provisions should be upheld and the writ petitions dismissed by reason of the historical background of Sikkim. It was repeatedly emphasised that in view of the 5th term of the Tripartite Agreement and in view of the fact that the Sangha seat was created by Chogyal as far back as in 1958, the arrangements agreed upon by the parties are number liable to be disturbed. Reference was made to the several Proclamations of Chogyal by the companynsel for the different respondents and intervenors one after the other. In my view the impact of the historical background on the interpretation of the situation is to the companytrary. During the period, referred to, the fight between the despotic Chogyal trying to retain his authority and the people demanding installation of a democratic rule was going on. No importance can, therefore, be attached to the terms included in the Agreement at the instance of the ruler or to his Proclamations. On the other hand, what is relevant to be companysidered is the demand of the people which ultimately succeeded. It we proceed to interpret the situation by respecting and giving effect to the acts and omissions of Chogyal in his desperate attempt to cling to, power and subvert to the democratic process set in motion by the people, we may have to rewrite the history and deprive the people of Sikkim of what they were able to wrest from his clutches from time to time ultimately ending with the merger. The reservation of the Sangha seat was also one of such anti-people acts. So far the Note to the Proclamation of 16 May, 1968 is companycerned if it has to be enforced, the Nepalis shall also be entitled to reservation of equal number of seats as the, Bhutia- Lepchas and same number of seats should be earmarked for numberination by the authority in power. Actually Mr. Bhatt appearing for some of the respondents seriously pressed before us the claim of Nepalis for reservation in their favour. This entire line of thought is wholly misconceived. We can number ignore the fact that as soon as the Assembly vested with effective authority was companystituted it proceeded to undo what is being relied upon before us on behalf of the respondents. When they passed the historic resolution dated April 10, 1975, discussed earlier in detail the 5th terms of the Agreement was given up, and when the people were invited to express. their opinion by holding a plebiscite, they gave their verdict, unburdened by any such companydition, by a near unanimous voice. I presume that this was so because it was known that the in-built safeguards of the Indian Constitution were adequate for taking care of this aspect. This is a companyplete answer to such an argument. The history, so far it may be relevant, companydemns in numberuncertain terms the excessive reservation in favour of the Bhutia-Lepchas and the Sangha. The Thirty-Sixth Amendment in the Constitution has to be understood in this light. My companyclusion, therefore, is that the impugned provisions are ultra vires the Constitution including Article 371F f . Consequently the present Sikkim Assembly companystituted on the basis of the election, held under the impugned provisions has to be declared illegally companystituted. Therefore, the companycerned authorities must take fresh and immediate steps under the law companysistent with the Constitution as applied to the rest of the companyntry. The writ petitions are accordingly allowed with companyts payable to the writ petitioners. Before finally closing, I would like to say a few words in the light of the opinion of my learned Brothers as expressed in the majority judgment disagreeing with my companyclusions. In view of this judgment all the petitions have number to be dismissed, but I want to emphasize that what has been held therein is that the Parliament has number exceeded its Constituent and Legislative Powers in enacting the impugned provisions and companysequently the writ petitions have to be dismissed. This does number mean that the Parliament is bound to give effect to the discriminatory provisions by reason of the historical background in which Sikkim joined India. It is within the wisdom to borrow the expression from paragraph 30 of the majority judgment of the Parliament to take a decision on the issue and as hinted in the same paragraph, the present situation hopefully may be a transitory passing phase. The provisions in clause f of Article 371F have been, in paragraph 31 of the judgment, described as enabling, that is, number obligatory. It, therefore, follows that although this Court has number jurisdiction to strike down the impugned provisions, it is perfectly within the domain of the Parliament to undo, what I prefer to call, the wrong. The unequal apportionment of the role in the polity of the companyntry assigned to different groups tends to foster unhealthy rivalry impairing the mutual feeling of goodwill and fellowship amongst the people, and encouraging divisive forces. The reservation of a seat for the Sanghas and creation of a separate electorate have a still greater pernicious portent. Religion, as it has companye to be understood, does number mix well with governance the resultant explosive companypound of such an ill suited companybination has proved to be lethal for the unity of the nation only a few decades ago leading to the partition. The framing of our Constitution was taken up immediately thereafter. Our companyntry has suffered for a thousand years on account of this dangerous phenomenon resulting in large scale internecine struggles and frequent blood spilling. Today a single seat in the legislature of one State is number companyspicuously numbericeable and may number by itself be capable of causing irreparable damage, but this seed of discord has the potentiality of developing into a deadly monster. It is true that some special rights have been envisaged in the Constitution for handicapped classes but this has been done only to off-set the disadvantage the classes suffer from, and number for bringing another kind of imbalance by making virtue out of minority status. The Constitution, therefore. has taken precaution to place rigid limitations on the extent to which this weightage can be granted, by including express provisions instead of leaving the matter to be dealt with by subsequent enactments limitations both by putting a ceiling on the reservation of seats in the legislatures and excluding religion as the basis of discrimination. To ignore these limitations is to encourage small groups and classes which are in good number in our companyntry on one basis or the other to stick to and rely on their special status as members of separate groups and classes and number to join the mainstream of the nation and be identified as Indians. It is, therefore, absolutely essential that religion, disguised by any mask and companycealed within any cloak must be kept out of the field exclusively reserved for the exercise of the State powers. To my mind the message has been always dear and loud and number it remains for the nation to pay heed to and act through its elected representatives. VENKATACHALIAH, J. These petitions under Article 226 of the Constitution of India -- which where originally filed in the High Court of Sikkim and number withdrawn by and transferred to this Court under Article 139-A -- raise certain interesting and significant issues of the companystitutional limitations on the power of Parliament as to the nature of the terms and companyditions that it companyld impose under Article 2 of the Constitution for the admission of the new States into the Union of India. These issues arise in the companytext of the admission of Sikkim into the Indian Union under the Constitution 36th Amendment Act, 1975 as the 22nd State in the First Schedule of the Constitution of India. Earlier, in pursuance of the resolution of the Sikkim Assembly passed by virtue of its powers under the Government of Sikkim Act, 1974, expressing its desire to be associated with the political and economic institutions of India and for the representation of the people of Sikkim in Indias Parliamentary system, the Constitution 35th Amendment Act, 1974 had companye to be passed inserting Article 2A which gave the State of Sikkim the status of an Associate State but later Sikkim became, as aforesaid, an integral part of the Indian Union as a fill-fledged State in the Union by virtue of the Constitution 36th Amendment Act, 1975, which, however, provided for special provisions in Article 371-F to accommodate certain historical incidents of the evolution of the political institutions of Sikkim. It is the companystitutionality of the incidents of this special status, particularly in the matter of reservation of seats for various ethnic and religious groups in the Legislative Assembly of the State that have been assailed as unconstitutional in these petitions. Sikkim is a mountain-State in the North-East of India of an area of about 7200 sq. km. on the Eastern Himlayas. It has a population of about four lakhs. Sikkim is of strategic location bounded, as it is, on the West by Nepal, on the North by Tibet, on the East by Bhutan and on the Southern and Western sides by the State of West Bengal in the Indian Union. It lies astride the shortest route from India to Tibet. The State is entirely mountainous. Covered with dense forests, it lies in the Northern-most Areas in Lachen and Lachung. Mountains rise to 7000 m and above Kanchenjunga 8,579 m being Worlds Third Highest Peak. Sikkim has several hundred varieties of orchids and is frequently referred to as botanists paradise. India 1991 page 930 . To the historian, Sikkims history, lore, culture and traditions are a fascinating study. The early history of this mountainous land is lost in the mists of time. But it is said that in 1642, Phuntsog Namgyal became the first Chogyal, the spiritual and temporal Ruler in the Namgyal dynasty which ruled Sikkim till it joined the mainstream of Indian polity in 1975. The main inhabitants of Sikkim are the Lepchas, the Bhutias and the later immigrants from Nepal. The Lepchas were the original indigenous inhabitants. The Bhutias are said to have companye from Kham in Tibet during the 15th and 16th centuries. These people of Tibetan origin are called Bhutias - said to be a derivative from the word Bod or Tibet - and as the tradition has it took refuge in the companyntry after the schism in Tibet in 15th and 16th centuries. One of their Chieftains was crowned the Chogyal of Sikkim in 1642. It would appear that Sikkim was originally quite an extensive companyntry but is stated to have lost large chunks of its territories to Nepal and Bhutan and finally to the British. Lepchas and Bhutias are Buddhists by religion. Sikkim was a British protectorate till 1947 when the British paramountancy lapsed whereafter under a Treaty of the 3rd December, 1950 with India, Sikkim companytinued as a protectorate of India. Over the past century there was large migration into Sikkim of people of Nepalese origin. The influx was such that in the companyrse of time, Sikkimese of Nepalese origin companystituted almost 2/3rd of Sikkims population. There has been, accordingly, a clamour for protection of the original Bhutias-Lepchas number an ethnic majority from the political voice and expression being sub- merged by the later immigrants from Nepal. These ethnic and demographic diversities of the Sikkimese people apprehensions of ethnic dimensions owing to the segmental pluralism of the Sikkimese society and the imbalances of opportunities for political expression are the basis of - and the claimed justification for - the insertion of Article 371-F. The phenomenon of deep fragmentation, societal cleavages of pluralist societies and recognition of these realities in the evolution of pragmatic adjustments companysistent with basic principles of democracy are the recurrent issues in political Organisation. In his Democracy in Plural Societies, Arend Lijphart makes some significant observations at Page 16. A great many of the developing companyntries--particularly those in Asia and Africa, but also some South American companyntries, such as Guyana, Surinam, and Trinidad--are beset by political problems arising from the deep divisions between segments of their populations and the absence of a unifying companysensus. The theoretical literature on political development, nation- building, and democratization in the new states treats this fact in a curiously ambivalent fashion. On the one hand, many writers implicitly refuse to acknowledge its importance. Such companymunal attachments are what Cliffor Geertz calls primordial loyalties, which may be based on language, religion, custom, region, race, or assumed blood ties. The subcultures of the European companysociational democracies, which are religious and ideological in nature and on which, two of the companyntries, linguistic divisions are superim- posed, may also be regarded as primordial groups-if one is willing to view ideology as a kind of religion. At the same time, it is imperative to be alert to qualitative and quantitative differences within the broad category of plural societies differences between different kinds of segmental cleavages and differences in the degree to which a society is plural. The second prominent characteristic of number- Western politics is the breakdown of democracy. After the initial optimism companycerning the democratic prospects of the newly independent companyntries, based largely on the democratic aspirations voiced by their political leaders, a mood if disillusionment has set in. And, according to many observers, there is a direct companynection between the two fundamental features of number-Western politics a plural society is incapable of sustaining a democratic government. Pluralist societies are the result of irreversible movements of history. They cannot be washed away. The political genius of a people should be able to evolve within the democratic system, adjustments and solutions. Pursuant to Article 371-F and the companyresponding companysequential changes brought about in the Representation of the People Act, 1950, Representation of the People Act, 1951, as amended by the Election Laws Extension to Sikkim Act, 1976 and the Representation of the People Amendment Act, 1980, 12 out of the 32 seats in the Sikkim Assembly are reserved for the Sikkimese of Bhutia-Lepcha origin and one seat for the Sangha, Buddhist Lamaic monasteries the election to which latter being on the basis of a separate Electoral roll in which only the Sanghas belonging to the Lamaic monasteries recognised for the purposes of elections held in Sikkim in April, 1974, are entitled to be registered. These reservations of seats for the ethnic and religious groups are assailed by the petitioners who are Sikkimese of Nepali origin as violative of the fundamentals of the Indian companystitutionalism and as violative of the principles of republicanism and secularism forming the bedrock of the Indian companystitutional ethos. The basic companytention is that Sikkim citizen is as much as citizen of the Union of India entitled to all the Constitutional guarantees and the blessings of a Republican Democracy. It is necessary here to advert to the movement for the establishment of a responsible Government in Sikkim and of the evolution of its political institutions. By a Royal Proclamation of 28th December, 1952, State Council was set-up in which out of the 12 elected members, 6 were to be Bhutias-Lepchas and the other 6 Sikkimese of Nepalese origin. Sikkim was divided into four companystituencies with the following break-down of the distribution of seats between Bhutias-Lepchas and the Nepalis Gangtok Constituency 2 Bhutia-Lepcha 1 Nepali North-Central Constituency 2 Bhutia Lepcha 1 Nepali Namchi Constituency 1 Bhutia Lepcha 2 Nepalis Pemayangtse Constituency 1 Bhutia Lepcha 2 Nepalis By the State Council and Executive Council Proclamation, 1953 dated 23rd March, 1953, a State Council of 18 members companysisting of 12 elected members, 5 numberinated members and a President to be numberinated by the Maharaja was companystituted. Out of the 12 elected members, again 6 were to be Bhutias- Lepchas and the other 6 of Nepalese origin. Clauses 1. 2 and 3 of the Proclamation read 1 This Proclamation may be cited as the State Council and Executive Council Proclamation, 1953, and shall companye into operation immediately on its publication in the Sikkim Government Gazette. There shall be companystituted a State Council for the State of Sikkim. The State Council shall companysist of A president who shall be numberinated and appointed by the Maharaja Twelve elected members, of whom six shall be either Sikkim Bhutia, or Lepcha and the remaining six shall be Sikkim Nepalese and, Five members numberinated by His Highness the Maharaja in his discretion. In 1958, the strength of the companyncil was increased to 20. The break up of the its companyposition was as under Seats reserved for Bhutia Lepchas 6 Seats reserved for Nepalis 6 General seat 1 Seat reserved for the Sangha 1 Nomination by His Highness 6 By the Representation of Sikkim Subjects Regulation, 1966 dated 21.12.1966 promulgated by the then Chogyal, the State Council was to companysist of territorial companystituencies as under Bhutia-Lepchas 7 Sikkimese Nepalese 7 The Sanghas 1 Scheduled Caste 1 Tsong 1 General seat 1 Nominated by the Chogyal 6 Total 24 The year 1973 saw the culmination of a series of successive political movements in Sikkim towards a Government responsible to the people. On 8th May, 1973, a tripartite agreement was executed amongst the Ruler of Sikkim, the Foreign Secretary to the Government of India and the political parties representing the people of Sikkim which gave expansion to the increasing popular pressure for self-Government and democratic institutions in Sikkim. This tripartite agreement envisaged the right of people of Sikkim to elections on the basis of adult suffrage. It also companytemplated the setting up of a Legislative Assembly in Sikkim to be re-constituted by election every four years. The agreement declared a companymitment to free and fair elections to be overseen by a representative of the Election Commission of India. Clause 5 of the Tripartite agreement said The system of elections shall be so organised as to make the Assembly adequately representative of the various sections of the population. The size and companyposition of the Assembly and of the Executive Council shall be such as may be prescribed from time to time, care being taken to ensure that numbersingle section of the population acquires a dominating position due mainly to its ethnic origin, and that the rights and interests of the Sikkimese Bhutia Lepcha origin and of the Sikkimiese Nepali, which includes Tsong and Scheduled Caste origin, are fully protected. This agreement was effectuated by a Royal Proclamation called the Representation of Sikkim Subjects Act. 1974. The reservations of seats under this dispensation were as under The Assembly shall companysist of thirty-two elected members. A i Sixteen Constituencies shall be reserved for Sikkimese of Bhutia Lepcha origin. A ii Out of these sixteen companystituencies, one shall be reserved for the Sangha. B i The remaining sixteen companystituencies shall be reserved for Sikkimese of Nepali, including Tsong and Scheduled Caste, origin. B ii Out of the above-mentioned sixteen companystituencies of reserved for Sikkimese of Nepali origin, one companystituency shall be reserved for persons belonging to the Scheduled Castes numberified in the Second Schedule annexed hereto. The Sikkim Assembly so elected and companystituted, passed the Government of Sikkim Act, 1974 for the progressive realisation of a fully responsible Government in Sikkim and for further strengthening close ties with India. Para 5 of the Tripartite agreement dated 8.5.1973 was incorporated in Section 7 of the said Act. Sections 30 and 33 of the said Act further provided For the speedy development of Sikkim in the social, economic and political field, the Government of Sikkim may a request the Government of India to include the planned development of Sikkim within the ambit to the Planning Commission of India while that Commission is preparing plans for the economic and social development of India and to appropriately associate officials from Sikkim in such work b request the Government of India to provide facilities for students from Sikkim in institutions for higher learning and for the employment of people from Sikkim in the public services of India including All India Services , at par with those available to citizens of India c seek participation and representation for the people of Sikkim in the political institutions of India. The Assembly which the has been formed as a result of the elections held in Sikkim in April, 1974, shall be deemed to be the first Assembly duly companystituted under this Act, and shall be entitled to exercise the powers and perform the functions companyferred on the Assembly by this Act. Article 2A of the Constitution introduced by the Constitution 35th Amendment Act, 1974 was the Indian reciprocation of the aspirations of the Sikkimese people and Sikkim was given the status of an Associate State with the Union of India under terms and companyditions set out in the 10th Schedule inserted in the Constitution by the said Constitution 35th Amendment Act, 1974. The year 1975 witnessed an uprising and dissatisfaction of the people against the Chogyal. The Sikkim Assembly, by an unanimous resolution, abolished the institution of Chogyal and declared that Sikkim shall thenceforth be a companystituent unit of India enjoying a democratic and fully responsible Government. The resolution also envisaged an opinion-poll the matter. Its resolution was endorsed by the people of Sikkim in the opinion-poll companyducted on 14.4.1975. The Constitution 36th Amendment Act, 1975 came to be passed giving statehood to Sikkim in the Indian polity Article 2A was repealed. Article 371-F introduced by the 36th Constitutional Amendment, envisaged certain special companyditions for the admission Sikkim as a new State in the Union of India. Certain legislative measures for amendments to the Electoral Laws companysidered necessary to meet the special situation of Sikkim, were also brought into force. Clause f Article 371F reads Parliament may, for the purpose of protecting the rights and interests of the different sections of the population of Sikkim, make provision for the number of seats in the Legislative Assembly of the State of Sikkim which may be filled by candidates belonging to such sections and for the delimitation of the assembly companystituencies from which candidates belonging to such sections alone may stand for election to the Legislative Assembly of the State of Sikkim. The Election Laws Extension to Sikkim Act, 1976 sought to extend, with certain special provisions, the Representation of the People Act, 1950 and the Representation of the People Act, 1951 to Sikkim. Section 25A of the said Act provides 25-A. Conditions of registration as elector in Sangha Constituency in Sikkim Notwithstanding anything companytained in sections 15 and 29, for the Sangha Constituency in the State of Sikkim, only the Sanghas belonging to monasteries, recognised for the purpose of the elections held in Sikkim in April, 1974, for forming the Assembly for Sikkim, shall be entitled to be registered in the electoral roll, and the said electoral roll shall, subject to the provisions of sections 21 to 25, be prepared or revised in such manner as may be directed by the Election Commission, in companysultation with the Government of Sikkim. By the Representation of the People Amendment Ordinance, 1979 promulgated by the President of India on 11.9.1979, amendments were introduced to the Representation of the People Act, 1950 and the Representation of the People Act, 1951 to enable fresh elections to the Sikkim Assembly on certain basis companysidered appropriate to and in companyformity with the historical evolution of the Sikkims political institutions. the Ordinance was later replaced by Representation of the People Amendment Act, 1980 by which subsection 1-A was inserted in Section of the Representation of the People Act, 1950. That sub-section provides 1-A . Notwithstanding anything companytained in sub-s. 1 , the total number of seats in the Legislative Assembly of the State of Sikkim, to be companystituted at anytime after the companymencement of the Representation of the People Amendment Act 1980 to be filled by persons chosen by direct election from assembly companystituencies shall be thirty-two, of which a twelve seats shall be reserved for Sikkimese of Bhutia Lepcha origin b two seats shall be reserved for the Scheduled Caste of that State and c one seat shall be reserved for the Sanghas referred to in Section 25-A. Explanation In this sub-s. Bhutia includes Chumbipa, Dopthapa, Dukpa, Kagatey, Sherps, Tibetan, Tromopa and Yolmo. Section 5-A was also introduced in the Representation of the People Act, 1951. Sub-section 2 of Section 5A provides 5A 2 Notwithstanding anything companytained in Section 5, a person shall number be qualified to be chosen to fill a seat in the Legislative Assembly of the State of Sikkim, to be companystituted at any time after the companymencement of the Representation of the People Amendment Act, 1980 unless a in the case of a seat reserved for Sikkimese of BhutiaLepcha origin, he is a person either of Bhutia or Lepcha origin and is an elector for any assembly companystituency in the State other than the companystituency reserved for the Sanghas b in the case of a seat reserved for the Scheduled Castes, he is a member of any of those castes in the State of Sikkim and is an elector for any assembly companystituency in the State c in the case of a seat reserved for Sanghas, he is an elector of the Sangha companystituency and d in the case of any other seat, he is an elector for any assembly companystituency in the State. Petitioners assail the companystitutionality of the provisions for reservation of seats in favour of Bhutias- Lepchas and the Sangha. On the companytentions urged in support of the petitions, the points that fall for companysideration, are the following Whether the questions raised in the petitions pertaining as they do to the terms and companyditions of accession of new territory are governed by rules of public international law and are number-justiciable on the political questions doctrine? Whether clause f of Article 371 F of the Constitution of India, introduced by the Constitution 36th Amendment Act, 1975 is violative of the basic features of democracy? Whether Secton 7 1A and Section 25A of the Representation of the People Act, 1950 as inserted by Election Laws Extension to Sikkim Act, 19761 and Representation of the People Amendment Act, 1980 respectively and Section 5A 2 of the Representation of the People Act, 1951 as inserted by the Representation of the People Amendment Act, 19801 providing for reservation of 12 seats, out of 32 seats in the Sikkim Legislative Assembly in favour of Bhutias-Lepachas, are unconstitutional as violative of the basic features of democracy and republicanism under the Indian Constitution? Whether the aforesaid provisions and the reservations made thereunder are violative of Article 14,170 2 and 332 of the Constitution? Whether they violate one person one vote rule? Or are these differences justified in the historical background of Sikkim and are incidental to the political events culminating in the cession of Sikkim? Whether the reservation of 12 seats out of 32 seats reserved for Bhutias-Lepchas is ultra vires of clause f of Article 371-F in that while that provision enabled the protection of the rights and interests of different sections of population of Sikkim and for the number of seats in the Legislative Assembly which may be filled by the candidates belonging to such sections, the impugned provisions pro- vide for one section alone, namely, the Bhutias-Lepchas. Whether, at all events in view of the Constitution Sikkim Scheduled Tribes Order, 1978 declaring Bhutias and Lepchas as a Schedule Tribe, the extent of reservation of seats is disproportionate and violative of Article 332 3 of the Constitution which requires that the number of seats to be reserved shall bear as nearly as may be, the same proportion to the total number of the seats in the Assembly as the population of the Scheduled Tribe in the State bears to the total population of the State. Whether the reservation of one seat for Sangha to be elected by an Electoral College of Lamaic monasteries is based purely on religious distinctions and is, therefore, unconstitutional as violative of Articles 15 1 and 325 of the Constitution and as violative of the principle of secularism? Re Contention a The territory of Sikkim was admitted into the Indian Union by an act of voluntary cession by the general companysent of its inhabitants expressed on a Referendum. Referring to the acquisition of title to territory by cession, a learned author says Title by Cession Title to territory may also be acquired by an act of cession, which means, the transfer of sovereignty over State territory by the owner ceding State to the acquiring State. It rests on the principle that the right of transferring its territory is a fundamental attribute of the sovereignty of a State. Plebiscite The method of plebiscite in certain cases was adopted by the Treaties of Peace after the First World War, and it had the buoyant blessing of President Wilson who told the Congress No peace can last or ought to last, which does number recognise and accept the principle that government drive all their just powers from the companysent of the governed, and that numberright anywhere exists to hand peoples about from sovereignty as if they were property. Article 26 of the Constitution of France 1946 provides that numbernew territory shall be added to France without a plebiscite. In certain cases, cession may be made companyditional upon the result of a plebiscite, which is held to give effect to the principle of self-determination. In other words, numbercession shall be valid until the inhabitants have given their companysent to it by a plebiscite. It is often only a technicality, as in Outer Mongolia, in 1945, and in South- West Africa, in 1946. As Oppenheim observes, it is doubtful whether the law of nations will ever make it a companydition of every cession that it must be ratified by a plebiscite. See Substance of Public International Law Western and Eastern A.K. Pavithran First Edition, 1965 at pp. 281-21 Sri Parasaran urged that the rights of the inhabitants of a territory becoming part of India depend on the terms subject to which the territory is admitted and Article 2 companyfers wide powers on the Parliament. Sri Parasaran urged that the companysiderations that guide the matter are eminently political and are outside the area of justiciability. Sri Parasaran said that the inhabitants of a territory can claim and assert only those rights that the succeeding sovereign expressly companyfers on them. Sri Parasaran relied upon the following observations of Chief Justice Chandrachud in Vinod Kumar Shantilal Gosalia v. Gangadhar Narsingdas Agarwal Ors., 1982 1 SCR 392 Before companysidering the merits of the respective companytentions bearing on the effect of the provisions of the Administration Act and the Regulation, it is necessary to reiterate a well-settled legal position that when a new territory is acquired in any manner - be it by companysent, annexation or cession following upon a treaty - the new sovereign is number bound by the rights which the residents of the companyquered territory had against their sovereign or by the obligations of the old sovereign towards his subjects. The rights of the residents of a territory against their state of sovereign companye to an end with the companyquest, annexation or cession of that territory and do number pass on to the new environment. The inhabitants of the acquired territory bring with them numberrights which they can enforce against the new State of which they become inhabitants. The new state is number required, by any positive assertion or declaration, to repudiate its obligations by disowning such rights. The new state may recongnise the old rights by re-granting them which, in the majority of cases, would be a matter of companytract or of executive action or, alternatively, the recognition of old rights may be made by an appropriate statutory provisions whereby rights which were in force immediately before an appointed date are saved. Whether the new state has accepted new obligations by recognising old rights, is a question of fact depending upon whether one or the other companyrse has been adopted by it. And, whether it is alleged that old rights are saved by a statutory provision, it becomes necessary to determine the kind of rights which are saved and the extend to which they are saved. But, we are afraid these observations are inapposite in the present companytext as the situation is different here. What the argument overlooks is that the petitioners are number seeking to enforce such rights as vested in them prior to the accession. What they seek to assert and enforce, are the rights which the Indian Constitution companyfers on them upon the accession of their territory into the Indian Union and as arising from the companyferment on them of Indian citizenship. In the present cases the question of recognition and enforcement of the rights which the petitioners, as residents of the ceded territory had against their own sovereign or by the obligations of the old sovereign its people, do number arise. The principal questions are whether there are any companystitutional limitations on the power of Parliament in the matter of prescription of the terms and companyditions for admission of a new State into the Union of India and if so, what these limitations are. Articles 2 and 4 of the Constitution provide Parliament may by law admit into the Union. or establish, new States on such terms and companyditions as it thinks fit. 4. 1 Any law referred to in article 2 or article 3 shall companytain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also companytain such supplemental, incidental and companysequential provisions including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law as Parliament may deem necessary. No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purpose of article 368. Can the Parliament in imposing terms and companyditions in exercise of power under Article 2 stipulate and impose companyditions inconsistent with the basic and fundamental principles of Indian Constitutionalism? Or is it imperative that the newly admitted State should be treated exactly similar to the States as at the time of the companymencement of the Constitution? If number, what is the extent of the permissible departure and latitude and do the companyditions in clause f of Article 371-F and as expressed in the electoral laws as applicable to Sikkim go beyond these companystitutionally permissible limits? These are some of the questions. The learned Attorney-General for the Union of India and Sri Parasaran sought to companytend that the terms and companyditions of admission of a new territory into the Union of India are eminently political questions which the Court should decline to decide as these questions lack adjudica- tive disposition. This political thickets doctrine as a restraint on judicial power has been the subject of forensic debate, at once intense and interesting, and has evoked companysiderable judicial responses. In The Constitution of the United States of America Analysis and Interpretation Congressional Research Service Library of Congress 1982 Edn. at p.703 , the following statement of the law on the subject occurs It may be that there will be a case assuredly within the Courts jurisdiction presented by the parties with standing in which adverseness and ripeness will exist, a case in other words presenting all the qualifications we have companysidered making it a justiciable companytroversy, which the Court will numberetheless refuse to adjudicate. The label for such a case is that it presents a political question. Tracing the origins and development of this doctrine, the authors refer to the following observations of Chief Justice Marshall in Marbury v. Madison, 1 Cr. 5 US 137, 170 1803 The province of the companyrt is, solely, to decide on the rights of individuals, number to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions in their natural political, or which are, by the companystitution and laws, submitted to the executive can never be made in this companyrt. emphasis supplied The authors further say But the doctrine was asserted even earlier as the Court in Ware v. Hylton, 3 Dall. 3 US 199 1796 refused to pass on the question whether a treaty had been broken. And in Martin v. Mott, 12 Wheat. 25 US 19 1827 the Court held that the President acting under companygressional authorization had exclusive and unreviewable power to determine when the militia should be called out. But it was in Luther v. Borden 7 How. 48 US 1 1849 that the companycept was first enunciated as a doctrine separate from companysiderations of interference with executive functions. Prior to the decision of the Supreme Court of the United States in Baker v. Carr, 369 US 186 the cases challenging the distribution of political power through apportionment and districting, weighed-voting, and restrictions on political action were held to present number- justiciable political questions. The basis of this doctrine was the seeming companyviction of the companyrts that the issues raised were well beyond the judicial responsibility. In Baker v. Carr, the Court undertook a major rationalisation and formulation of the political question doctrine which led to companysiderable narrowing of its application. The effect Baker v. Carr., and the later decision in Poweel v. McCormack, 395 US 486 is that in the United States of America certain companytroversies previously immune from adjudication were held justiciable and decided on the merits. The rejection of the political thickets arguments in these cases marks a narrowing of the operation of the doctrine in other areas as well. In Japan Whaling Assn v. American Cetacean Society, 478 1986 US 221 the American Supreme Court said We address first the Japanese petitioners companytention that the present actions are unsuitable for judicial review because they involve foreign relations and that a federal companyrt, therefore, lacks the judicial power to companymand the Secretary of Commerce, an Executive Branch official, to dishonor and repudiate an international agreement. Relying on the political question doctrine, and quoting Baker v. Carr., 369 US 186, 217 7 L Ed. 2d 663, 82 S Ct. 691 1969 the Japanese Petitioners argue that the danger of embar- rassment from multifarious pronouncements by various departments on one question bars any judicial resolution of the instant companytroversy. Page 178 We disagree. Baker carefully pointed out that number every matter touching on politics is a political question, id., at 209, 7 L Ed. 2d 663, 82 S.Ct. 691, and more specifically, that it is error to suppose that every case of companytroversy which touches foreign relations lies beyond judicial companynizance. Id., at 211, 7 L Ed. 2d 663, 82 S Ct. 691. The political question doctrine excludes from judicial review those companytroversies which revolve around policy choices and value determinations companystitutionally companymitted for resolution to the halls of Congress or the companyfines of the Executive Branch. The Judiciary is particularly ill-suited to make such decisions, as companyrts are fundamentally under equipped to formulate national policies or develop standards for matters number legal in nature. P. 178 As Bakerplainly held, however, the companyrts have the authority to companystrue treaties and executive agreements, and it goes without saying that interpreting companygressional legislation is a recurring and accepted task for the federal companyrts. It is also evident that the challenge to the Secretarys decision number to certify Japan for harvesting whales in excess of IWC quotas presents a purely legal question of statutory interpretation. The Court must first determine the nature and scope of the duty imposed upon the secretary by the Amendments, a decision which calls for applying numbermore than the traditional rules of statutory companystruction, and then applying this analysis to the particular set of facts presented below. We are companynizant of the interplay between these Amendments and the companyduct of this Nations foreign relations, and we recognize the premier role which both Congress and the Executive play in this field. But under the Constitution, one of the Judiciarys characteristic roles is to interpret Statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones. PP. 178-9 emphasis supplied Our Court has received and viewed this doctrine with a cautious reservation. In A.K Roy v. Union of India, 1982 2 SCR 272 at 296-7, Chief Justice Chandrachud recognised that the doctrine, which was essentially a function of the separation of powers in America, was to be adopted cautiously and said It must also be mentioned that in the United States itself, the doctrine of the political question has companye under a cloud and has been the subject matter of adverse criticism. It is said that all that the doctrine really means is that in the exercise of the power of judicial review, the companyrts must adopt a prudential attitude, which requires that they should be wary of deciding upon the merit of any issue in which claims of principle as to the issue and claims of expediency as to the power and prestige of companyrts are in sharp companyflict. The result, more or less, is that in America the phrase political question has become a little more than a play of words. There is further recognition of the limitation of this doctrine in the pronouncement of this Court in Madhav Rao v. Union of India, 1971 3 SCR 9 and State of Rajasthan v. Union of India, 1978 1 SCR 1. It is urged for the respondents that Article 2 of the Constitution empowers the Parliament, by law, to admit into the Union new States on such terms and companyditions as it finds fit and that these companysiderations involve companyplex questions of political policy and expedience of international-relations of security and defence of the realm etc. which do number possess and present judicially manageable standards. Judicial response to these questions, it is urged, is judicial restraint. The validity of clause f of Article 371 F introduced by the Constitution 36th Amendment Act, 1975 is assailed on the ground that the said clause provides for a reservation which violates one person one vote rule which is essential to democracy which latter is itself a basic feature of the Constitution. The power to admit new States into the Union under Article 2 is, numberdoubt, in the very nature of the power, very wide and its exercise necessarily guided by political issues of companysiderable companyplexity many of which may number be judicially manageable. But for that reason, it cannot be predicated that Article 2 companyfers on the Parliament an unreviewable and unfettered power immune from judicial scrutiny. The power is limited by the fundamentals of the Indian companystitutionalism and those terms and companyditions which the Parliament may deem fit to impose, cannot be inconsistent and irreconcilable with the foundational principles of the Constitution and cannot violate or subvert the Constitutional scheme. This is number to say that the companyditions subject to which a new State or territory is admitted into the Union ought exactly be the same as those that govern all other States as at the time of the companymencement of the Constitution. It is, however, urged that Article 371F starts with a number obstante clause and therefore the other provisions of the Constitution do number limit the power of impose companyditions. But Article 371-F cannot transgress the basic features of the Constitution. The number obstante clause cannot be companystrued as taking clause f of Article 371F outside the limitations on the amending power itself The provisions of clause f of Article 371-F and Article 2 have to be companystrued harmoniously companysistent with the foundational principles and basic features of the Constitution. Whether clause f has the effect of destroying a basic feature of the Constitution depends, in turn, on the question whether reservation of seats in the legislature based on ethnic group is itself destructive of democratic principle. Whatever the merits of the companytentions be, it cannot be said the issues raised are number-justiciable. In Mangal Singh Anr. v. Union of India, 1967 2 SCR 109 at 112 this Court said Power with which the Parliament is invested by Arts. 2 and 3, is power to admit, establish, or form new States which companyform to the democratic pattern envisaged by the Constitution and the power which the Parliament may exercise by law is supplemental, incidental or companysequential to the admission, establishment or formation of a State as companytemplated by the Constitution, and is number power to override the companystitutional scheme. Even if clause f of Article 371 F is valid, if the terms and companyditions stipulated in a law made under Article 2 read with clause f of Article 371F go beyond the companystitutionally permissible latitudes, that law can be questioned as to its validity. The companytention that the vires of the provisions and effects of such a law are number- justiciable cannot be accepted. Contention a requires to be and is rejected. Re Contentions b , c and d The objection of number-justiciability thus out of their way, he petitioners urge that the provisions in clause f of Article 371F enabling reservation of seats for sections of the people and law made in exercise of that power providing reservation of seats to Bhutias-Lepchas violate fundamental principles of democracy and republicanism under the Indian Constitution and violate the one person one vote rule which, it is urged, is a basic to the republican principle found in Article 170 2 of the Constitution. Sri R.K. Jain, learned senior companynsel for the petitioners said that apart from the invalidity of the power itself the exercise of the power in the matter of the extent of the reservations made for Bhutias-Lepchas has the effect of whittling down, companyrespondingly, the value of the votes of the Sikkimese of Nepalese origin and is destructive of the equality principle and the democratic principle. Clauses 1 and 2 of Article 170 provide 170. 1 Subject to the provisions of article 333, the Legislative Assembly of each State shall companysist of number more than five hundred, and number less than sixty, members chosen by direct election from territorial companystituencies in the State. For the purposes of clause 1 , each State shall be divided into territorial companystituencies in such manner that the ratio between the population of each companystituency and the number of seats allotted to it shall, so far as practicable be the same throughout the State. Explanation. In this clause, the expression population means the population as ascertained at the last preceding census of which the relevant figures have been published This provision incorporates the rule of fair and effective representation. Though the rule one person one vote is a broad principle of democracy, it is more a declaration of a political ideal than a mandate for enforcement with arithmetical accuracy. These are the usual problems that arise in the delimitation of companystituencies. In what is called First-past-thepost system of elections, the variations in the size and in the voting populations of different companystituencies, detract from a strict achievement of this ideal. The system has the merit of preponderance of decisiveness over representativeness. Commenting on this phenomenon Keith Graham in The Battle of Democracy. Conflict, Consensus and the Individual says This, in existing systems where voters are electing representatives, examples of gross inequality between the powers of different votes occur, either because of disparities in companystituency size or because of the anomalies produced in a first-past-the-post system. There was, for instance, an occasion when one Californian State Senator represented six million electors and another one fourteen thousand electors Portter 1981114 in February, 1974 companystituencies in England varied from 96,380 to 25,007 electors Hansard Society Commission 19767 and in the United Kingdom between 1945 and 1976 nine out of ten of the elected governments acquired more than 50 per cent of the seats, but numbere acquired 50 per cent of the votes cast ibid.9 . When the United States Supreme Court asserted that it had jurisdiction in the matter of huge disparities in the value of citizens votes. it did so, significantly, by referring to the Fourteenth Amendment, which guarantees equal protection of the laws. Page 55 The companycept of political equality underlying a democratic system. is a political value. Perfect political equality is only ideological. Indeed, a, Rodney Brazier points out in his Constitutional Reform Reshaping the British Political System Inextricably linked in the voting system with unfairness is the supremacy of decisiveness over representativeness. The first-past-the- post system has developed into a mighty engine which can be relied on to produce a government from one of the two principal parties. But in that development the purpose of gathering a House of Commons which is broadly representative of the electorate has rather faded. This would be possibly number be as important as it is if the elective function worked on the basis of a majority of voters companyferring a parliamentary majority on the winning party. Patently, however, it does number do so. Mrs. Thatchers 144-seat landslide majority in 1983, and her huge 102-seat majority in 1987, were achieved even though on both occasions some 57 per cent of votes were given to other parties. Almost 60 per of voting citizens voted against the Conservative Government. This is by numbermeans a recent phenomenon. Attlees 146-seat majority in 1945 was won on under 48 per cent of the vote, and indeed numberwinning party has been supported by half or more of those going to the polls since the general election of 1935. Are the virtues of the British electoral system simplicity, decisiveness, its ability to produce stable governments, and so on so self-evident as to justify such distortions of the electoral will? It is really necessary to have voting system predicated either on the representative function, or as in Britain on the elective function? Page 46 Again, Brazier in Constitutional Practice Clarendon Press Oxford says The first-past-the-post system usually has the advantage of producing a majority government at a general election it is decisive, simple, and familiar to the electorate. Yet it is also unfair. No one companyld say that a scheme which gives one political group three per cent of the seats from 22.6 per cent of the national vote, but which gives another party 36 per cent of the seats with a mere eight per cent more of the votes, does anything but violence to the companycept of fair play as the British understand it. The present system also underspins elective dictatorship in a way that different electoral rules, Which would return more MPs from third and perhaps fourth parties, would undermine. And we speak of majority governments by reference to seats won in the House, but numbergovernment has been returned with a majority of the popular vote since 1935. Page 191 Arend Lijphart in Democracy in Plural Societies observes Formidable though the classic dangers are of a plurality of sovereign states, these have to be reckoned against those inherent in the attempt to companytain disparate companymunities within the framework of a single government. In the field of peace research, there is a similar tendency to frown on peace which is achieved by separating the potential enemies-- significantly labeled negative peace--and to strive for peace based on fraternal feeling within a single integrated and just society positive peace. P. 47 The problem of equality of the value of votes is further companyplicated by a progressive rural depopulation and increasing urbanisation. In the work Legislative Apportionment Key to Power Howard D. Hamilton the learned author says But even the right to vote, and its exercise does number in itself insure equal voice in the affairs of government. Today--more than 175 years after the nation was founded the votes of millions of citizens are worth only one-half, one quarter and even one-one hundredth the value of votes of others because of the unfair formulas by which we elect the Unites States Congress and the legislatures of the forty-eight states. As our population grows and moves companytinuously toward urban centres, the ballots of millions become less and less equal to the votes of others. Our system of representative government is being sapped at its roots. Who are the second-class citizens in this under represented majority? They are the millions living in our towns and cities, says the United States Conference of Mayors, pointing to the fact that the 59 per cent of all Americans who were living in urban centers in 1947 elected only 25 percent of the state legislators. Page 74 Gordon E. Baker writing on One Person, One Vote Fair and Effective Representation? Representation and Misrepresentation Rand McNally Co. Chicago says While population inequality among legislative districts is hardly new, its has become a major source of companytroversy primarily in the twentieth century. A statistical analysis of the New Jersey Senate by Professor Ernest C. Reock, Jr., revealed that The average relative population deviation rose from 27.7. per cent in 1791 to 80.0 per cent in 1922. The ratio between the largest and smallest companynties only 7.85 at the. beginning of that period reached 33.51 at the end. The minimum percentage of the states population residing in companynties electing a majority of the Senate dropped from 41.0 per cent to 15.9 per cent. PP. 72-3 Sri Jain, however, relied upon the decision in B-4. Reynolds v. M. O. Sims, 377 US 506 at 527 in which it was observed Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any allege infringement of the right of citizens to vote must be carefully and meticulously scrutinized. Legislators represent people, number trees or acres. Legislators are elected by voters, number farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system. And, if a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the State, it companyld hardly be companytended that the right to vote of those residing in the disfavored areas had number been effectively diluted. It would appear exordinary to suggest that a State companyld be companystitutionally permitted to enact a law providing that certain of the States voters companyld vote two, five or 10 times for their legislative representatives, while voter living elsewhere companyld vote only once. Even so, Chief Justice Warren observed We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable companystitutional requirement. p.536 So long as the divergences from a strict population standard are based on legitimate companysiderations incident to the effectuation of a rational state policy some deviations from the equal-population principle are companystitutionally permissible with respect to the apportionment of seats in either or both of the two houses of a bicameral state legislature. p.537 emphasis supplied Section 24 of the Australian Constitution requires that the House of Representatives shall be companyposed of members directly chosen by the people of Commonwealth. The High Court of Australia companysidered the principle of Reynolds v. Sims, supra somewhat inapposite in the Australian companytext.In Attorney General CTH Ex. Rel Mckinlay v. The Commonwealth,1975 135 CLR 1 at p.22 Barwick CJ observed It is, therefore, my opinion that the second paragraph of s.24 cannot be read as companytaining any guarantee that there shall be a precise mathematical relationship between the number of members chosen in a State and the population of that State or that every person in Australia or that every elector in Australia will have a vote, or an equal vote. Mason, J. said The substance of the matter is that the companyception of equality in the value of a vote or equality as between electoral divisions is a companyparatively modern development for-which numberstipulation was made in the system of democratic representative government provided for by our Constitution. p.62 It is true that the right to vote is central to the right to participation in the democratic process. However, there is less companysensus amongst theorists on the propriety of judicial activism in the voting area. In India, the Delimitation Laws made under Article 327 of the Constitution of India, are immune from the judicial test of their validity and the process of allotment of seats and companystituencies number liable to be called in question in any companyrt by virtue of Article 329 a of the Constitution. But the laws providing reservations are made under authority of other provisions of the Constitution such as those in Art. 332 or clause f of Article 371F which latter is a special provision for Sikkim. The rationale and companystitutionality of clause f and the other provisions of the electoral laws impugned in these petitions are sought to be justified by the respondents on grounds that first, a perfect arithmetical equality of value of votes is number a companystitutionally mandated imperative of democracy and, secondly, that even if the impugned provisions make a departure from the tolerance limits and the companystitutionally permissible latitudes, the discriminations arising are justifiable on the basis of the historical companysiderations peculiar to and characteristic of the evolution of Sikkims political institutions. This, it is urged, is the justification for the special provisions in clause f which was specifically intended to meet the special situation. It is sought to be pointed out that throughout the period when the ideas of responsible- Government sprouted in Sikkim, there has been a vigilant political endeavour to sustain that delicate balance between Bhutias-Lepchas on the one hand and the Sikkimese of Nepalese origin on the other essential to the social stability of that mountain-State. Clause f of Article 371F was intended to prevent the domination of the later Nepali immigrants who had, in companyrse of time, outnumbered the original inhabitants. What Article 371-F f and the electoral laws in relation to Sikkim seek to provide, it is urged, is to maintain this balance in the peculiar historical setting of the development of Sikkim and its political institutions. So far as the Sangha is companycerned it is urged that though it was essentially a religious institution of the Buddhists, it however occupied a unique position in the political, social and cultural fife of the Sikkimese society and the one seat reserved for it cannot, therefore, be said to be based on companysiderations only of religion. In the companynter-affidavit filed by the Sikkim Tribal Welfare Association, certain special aspects of the position of the Sangha in Sikkims polity are emphasised. Reference to and reliance has been placed on the extracts from The Himalayan Gateway History and Culture of Sikkim in which the following passages occur The reservation for the Sangha is the most unique feature of the political set up in the State. It is a companycession to companytinuity and is admittedly short term. Before the revolu- tion the Buddhist Sangha of the Lamas wielded immense power, both religious and political. The people have companye to have great faith in their wisdom and justice. They are universally respected and still companymand companysiderable influence with a section of the people who would be called poor and politically backward. The presence of onle of their representatives in the Assembly companyld possibly give the illiterate masses a greater faith in its deliberations. P.149 Finally lamaism is a social Organisation. The lamas to a lesser extent the nuns are arranged in a disciplined hierarchy. They are a section of society which performs for the whole society its religious functions in return the rest of society should give material support to the lamas PP. 192- 193 It is calculated that about ten per cent of the companybined Bhutia-Lepcha population are monks. Could there be anything more telling for the spiritual heritage of the people. According to tradition the second son of every Bhutia house-hold is to be called to the Sangha the order of Buddhist monks. No matter where one goes, one can companye across a monastery called Gompa. For a small state like Sikkim in which the Buddhist Bhutia Lepcha population hardly exceed thirty thousands, there are more than thirty famous monasteries. In fact most of the prominen hilltops of the companyntry are crowned with a monastery shrine or a temple. Apart from these at every village there is a Gompa or a village monastery with a resident lama looking after the spiritual needs of a small companymunity. Frequently, Chorten, the lamaist version of the original Buddhist stupa, are also seen. pp. 112-3 Life in the companyntryside centres round the monastery of the Buddhist monks, the lamas. Birth, death, sickness all are occasions for the lamas to be called in for the performance of appropriate ceremonies. Just putting up a prayer flag even needs the attendance of lamas. p. 115 Since the rulers were also monk-incarnates companystantly in transaction with the high Lamas of Tibet and the DebRaja of Bhutan, these monks were used as emissaries, medioators, and settlers of various state affairs. In internal administration also, the monks held important positions. They were appointed to the State Council, they managed the monastery estates, administered justice and even helped the laity in fighting against the enemies. Though economically dependent, they were very much influential both in the companyrt and in public life. In fact, it was these clergymen who managed the affairs of the state in companylaboration with Kazis. p. 18, 19 As is numbericed earlier Article 2 gives a wide latitude in the matter of prescription of terms and companyditions subject to which a new territory is admitted. There is numberconstitutional imperative that those terms and companyditions should ensure that the new State should, in all respects, be the same as the other States in the Indian Union. However, the terms and companyditions should number seek to establish a form or system of Government or political and governmental institutions alien to and fundamentally different from those the Constitution envisages. Indeed, in Constitutional Law of India, Edited by Hidayatullah, J. published by the Bar Council of India Trust, it is observed Foreign territories, which after acquisition, become a part of the territory of India under Article 1 3 c can be admitted into the Union of India by a law passed under Article Such territory may be admitted into the Union of India or may be companystituted into new States on such terms and companyditions as Parliament may think fit. Such territory can also be dealt with under clause a or b of Article 3. This means that for admitting into the Indian Union or establishing a new State, a parliamentary, law is necessary and the new State so admitted or established cannot claim companyplete equality with other Indian States, because Parliament has power to admit or establish a new State on such terms and companyditions as it thinks fit. Vol. I, Page 58 Emphasis supplied In judicial review of the vires of the exercise of a companystitutional power such as the one under Article 2, the significance and importance of the political companyponents of the decision deemed fit by Parliament cannot be put out of companysideration as long as the companyditions do number violate the companystitutional fundamentals. In the interpretation of companystitutional document, words are but the framework of companycept and companycepts may change more than words themselves. The significance of the change of the companycepts themselves is vital and the companystitutional issues are number solved by a mere appeal to the meaning of the words without an acceptance of the line of their growth. It is aptly said that the intention of a Constitution is rather to outline principles than to engrave details. Commenting on the approach appropriate to a Constitution, a learned author speaking of another federal document says The Australian Law Journal, Vol. 43 at p.256 A moments reflection will show that a flexible approach is almost imperative when it is sought to regulate the affairs of a nation by powers which are distributed, number always in the most logical fashion, among two or more classes of political agencies. The difficulties arising from this premise are much exacerbated by the way in which the Australian Constitution came to be formed drafted by many hands, then subjected to the hazards of political debate, where the achievement of unanimity is often bought at the price of companypromise, of bargaining and expediency. An examination of the companystitutional scheme would indicate that the companycept of one person one vote is In its very nature companysiderably tolerant of imbalances and departures from a very strict application and enforcement. The provision in the Constitution indicating proportionality of representation is necessarily a broad, general and logical principle but number intended to be expressed with arithmetical precision. Articles 332 3A and 333 are illustrative instances. The principle of mathematical proportionality of representation is number a declared basic requirement in each and every part of the territory of India. Accommodations and adjustments, having regard to the political maturity, awareness and degrees of political development in different parts of India, might supply the justification for even number-elected Assemblies wholly or in part, in certain parts of the companyntry. The differing degrees of political development and maturity of various parts of the companyntry, may number justify standards based on mathematical accuracy. Articles 371A, a special provisions in respect of State of Negaland, 239A and 240 illustrate the permissible areas and degrees of departure. The systemic deficiencies in the plenitude of the doctrine of fun and effective representation has number been understood in the companystitutional philosophy as derogating from the democratic principle. Indeed the argument in the case, in the perspective, is really one of violation of the equality principle rather than of the democratic principle. The inequalities in representation in the present case are an inheritance and companypulsion from the past. Historical companysiderations have justified a differential treatment. Article 371F f cannot be said to violate any basic feature of the Constitution such as the democratic principle. From 1975 and onwards, when the impugned provisions came to be enacted, Sikkim has been emerging from a political society and monarchical system into the mainstream of a democratic way of life and an industrial civilisation. The process and pace of this political transformation is necessarily reliant on its institutions of the past. Mere existence of a Constitution, by itself, does number ensure companystitutionalism or a companystitutional culture. It is the political maturity and traditions of a people that import meaning to a Constitution which otherwise merely embodies political hopes and ideals. The provisions of clause f of the Article 371F and the companysequent changes in the electoral laws were intended to recognise and accommodate the pace of the growth of the political institutions of Sikkim and to make the transition gradual and peaceful and to prevent dominance of one section of the population over another on the basis of ethnic loyalties and identities. These adjustments and accommodations reflect a political expediencies for the maintenance of social equilibrium. The political and social maturity and of economic development might in companyrse of time enable the people of Sikkim to transcend and submerge these ethnic apprehensions and imbalances and might in future -- one hopes sooner -- usher-in a more egalitarian dispensation. Indeed, the impugned provisions, in their very nature, companytemplate and provide for a transitional phase in the political evolution of Sikkim and are thereby essentially transitional in character. It is true that the reservation of seats of the kind and the extent brought about by the impugned provisions may number, if applied to the existing States of the Union, pass the Constitutional muster. But in relation to a new territory admitted to the Union, the terms and companyditions are number such as to fall outside the permissible companystitutional limits. Historical companysiderations and companypulsions do justify in equality and special. treatment. In Lachhman Dass etc. v. State of Punjab Ors., AIR 1963 SC 222 this companyrt said The law is number well settled that while Article 14 prohibits discriminatory legislation directed against one individual or class of individuals, it does number forbid reasonable classification, and that for this purpose even one person or group of persons can be a class. Professor Willis says in his Constitutional Law p.580 a law applying to one person or one class of persons is companystitutional if there is sufficient basis of reason for it And if after reorganisation of States and integration of the Pepsu Union in the State of Punjab, different laws apply to different parts of the State, that is due to historical reasons, and that has always been recognised as a proper basis of classification under Article 14. In State of Madhya Pradesh v. Bhopal Sugar Industries Ltd., 1964 6 SCR 846 at 850 this companyrt said The Legislature has always the power to make special laws to attain particular objects and for that purpose has authority to select or classify persons, objects or transactions upon which the law is intended to operate. Differential treatment becomes unlawful only when it is arbitrary or number supported by a rational relation with the object of the statute where application of unequal laws is reasonably justified for historical reasons, a geographical classification founded on those historical reasons would be upheld. We are of the view that the impugned provisions have been found in the wisdom of Parliament necessary in the admission of a strategic border- A State into the Union. The departures are number such as to negate fundamental principles of democracy. We accordingly hold and answer companytentions b , c and d also against the petitioners. Re Contentions e and f Sri Jain submitted that clause f of Article 371F would require that wherever provisions for reservation of seats are companysidered necessary for the purpose of protecting the rights and interests of different sections of the population of Sikkim, such reservations are to be made for all such sections and number, as here, for one of them alone. This companytention ignores that the provision in clause f of Art. 371 F is merely enabling. If reservation is made by Parliament for only one section it must, by implication, be companystrued to have exercised the power respecting the other sections in a negational sense. The provision really enables reservation companyfined only to a particular section. Sri Jain companytended that Bhutias and Lepchas had been declared as Scheduled Tribes under the Constitution Sikkim Scheduled Tribes Order, 1978 and that the extent of the reservation in their favour would necessarily be governed by the provisions of Article 332 2 of the Constitution which requires that the number of seats to be reserved shall bear, as nearly as may be, the same proportion to the total number of seats in the Assembly as the population of the Schedule Tribes in the State bears to the total population of the State. But, in our opinion, clause f of Article 371F is intended to enable, a departure from Art. 332 2 . This is the clear operational effect of the number obstante clause with which Article 371F opens. Sri Jain pointed out with the help of certain demographic statistics that the degree of reservation of 38 in the present case for a population of 20, is disproportionate. This again has to be viewed in the historical development and the rules of apportionment of political power that obtained between the different groups prior to the merger of the territory in India. A parity had been maintained all through. We are of the opinion that the provisions in the particular situation and the permissible latitudes, cannot be said to be unconstitutional. Re Contention g The companytention is that the reservation of one seat in favour of the Sangha which is Bhuddhist Lamaic religious monasteries, is one purely based on religious companysiderations and is violative of Articles 15 1 and 325 of the Constitution and offends its secular principles. The reservation of one seat for the Sangha, with a special electorate of its own, might at the first blush appear to resuscitate ideas of separate electorates companysidered pernicious for the unity and integrity of the companyntry. The Sangha, the Buddha and the Dharma are the three fundamental postulates and symbols of Buddhism. In that sense they are religious institutions. However, the literature on the history of development of the political institutions of Sikkim adverted to earlier tend to show that the Sangha had played an important role in the political and social life of the Sikkimese people. It had made its own companytribution to the Sikkimese culture and political development. There is material to sustain the companyclusion that the Sangha had long been associated itself closely with the political developments of Sikkim and was inter- woven with the. social and political life of its people. It view of this historical association, the provisions in the matter of reservation of a seat for the Sangha recognises the social and political role of the institution more than its purely religious identity. In the historical setting of Sikkim and its social and political evolution the provision has to be companystrued really as number invoking the impermissible idea of a separate electorate either. Indeed, the provision bears companyparison to Articles 333 providing for representation for the Anglo-Indian companymunity. So far as the provision for the Sangha is companycerned, it is to be looked at as enabling a numberination but the choice of the numberinee being left to the Sangha itself We are companyscious that a separate electorate for a religious denomination would be obnoxious to the fundamental principles of our secular Constitution. If a provision is made purely on the basis of religious companysiderations for election of a member of that religious group on the basis of a separate electorate, that would, indeed, be wholly unconstitutional. But in the case of the Sangha, it is number merely a religious institution. It has been historically a political and social institution in Sikkim and the provisions in regard to the seat reserved admit to being companystrued as a numberination and the Sangha itself being assigned the task of and enabled to indicate the choice of its numberinee. The provision can be sustained on this companystruction. Contention g is answered accordingly. For the foregoing reasons, all the petitions are dismissed without any order as to companyts. C. AGRAWAL, J. With due deference to my learned brethren for whom I have the highest regard, I regret my inability to companycur fully with the views expressed in either of these judgments. It has, therefore, become necessary for me to express my views separately on the various questions that arise for companysideration. These cases arise out of Writ Petitions which were originally filed under Article 226 of the Constitution in the High Court of Sikkim and have been transferred to this Court for disposal under Article 139A of the Constitution. They involve challenge to the validity of the provisions in- serted in the Representation of the People Act, 1950 hereinafter referred to as the 1950 Act and the Representation of the People Act, 1951 hereinafter referred to as the 1951 Act by the Election Laws Extension to Sikkim Act, 1976 10 of 1976 hereinafter referred to as the 1976 Act and the Representation of the People Amendment Act, 1980 Act No. 8 of 1080 hereinafter referred to as the 1980 Act , whereby i twelve seats out of thirty-two seats in the Legislative Assembly of Sikkim have been reserved for Sikkimese of Bhutia-Lepcha origin and ii one seat has been reserved for Sanghas and election to the seat reserved for Sanghas is required to be companyducted on the basis of a separate electoral roll in which only the Sanghas belonging. to monasteries recognised for the purpose of elections held in Sikkim in April, 1974 for forming the Assembly for Sikkim are entitled to be registered. For a proper appreciation of the questions that arise for companysideration, it is necessary to briefly refer to the historical background in which the impugned provisions were enacted. Sikkim is mainly inhabited by Lepchas, Bhutias and Nepalese. Lepchas are the indigenous inhabitants. Bhutias came from Kham in Tibet some time during fifteenth and sixteenth centuries and one of the chieftains was crowned Chogyal, or religious and secular ruler, in 1642. Lepchas and Bhutias are Buddhists. By the end of the last century, Sikkim became a British protectorate and it companytinued as such till 1947 when British rule came to an end in India. During this period, while it was British protec- torate, there was immigration of Nepalese on a large scale and as a result, by 1947, Sikkimese of Nepali origin out- numbered other people in a ratio of 21. After the end of the British rule in 1947, Sikkim came under the protection of the Government of India. On December 3, 1950, the Maharaja of Sikkim entered into a treaty with the President of India whereby it was agreed that Sikkim shall companytinue to be a Protectorate of India and subject to the provisions of the Treaty, shall enjoy autonomy in regard to its internal affairs. On December 28, 1952, the Ruler of Sikkim issued a Proclamation to make provision for election of members of the State Council. The said Proclamation envisaged twelve elected members in the Council out of which six were to be Bhutia-Lepcha and six were to be Nepalese. On March 23, 1953, another Proclamation known as the State Council and Executive Council Proclamation, 1953, was issued. It provided for a State Council companysisting of eighteen members a President to be numberinated and appointed by the Maharaja twelve elected members and five numberinated members . Out of the elected members six were to be either Sikkimese Bhutia or Lepcha and the remaining six were to be Sikkimese Nepalese. By Proclamation dated March 16, 1958, the strength of the Council was raised to twenty. The six seats for numberinated members were retained and while maintaining the reservation of six seats for Bhutias and Lepchas and six seats for Nepalese, it was provided that there shall be one general seat and one seat shall be reserved for the Sangha. It was provided that voting for the seat reserved for the Sangha will be through an electoral companylege of the Sanghas belonging to monasteries recognised by the Sikkim Darbar Ruler of Sikkim . Certain adaptations and modifications in the laws relating to election to and companyposition of the Sikkim Council were made by the Proclamation dated December 21, 1966 known as the Representation of Sikkim Subjects Regulation, 1966 issued by the Chogyal Ruler of Sikkim. Under the said Proclamation, for the purpose of election to the Sikkim Council, Sikkim was divided into five territorial companystituencies, one General Constituency and one Sangha Constituency. The General Constituency was to companyprise the whole of Sikkim and the Sangha Constituency was to companyprise the Sanghas belonging to the monasteries recognised by the Sikkim Darbar. It was also declared that, besides the President who was to be appointed by the Chogyal, the Sikkim Council was to companysist of twenty-four members out of which seven were to be Bhutia-Lepcha and seven were to be Sikkimese Nepali who were to be elected from five territorial companystituencies three members were to be elected from the general companystituency out of which one seat was to be a General seat, the second from the Scheduled Castes as enumerated in the Second Schedule annexed to the Proclamation, and the third from Tsongs and the Sangha Constituency was to elect one member through an electoral companylege of the Sanghas. Six seats were to be filled in by numberination made by the Chogyal at his discretion. On May 8, 1973, a tripartite agreement was entered into by the Chogyal of Sikkim the Foreign Secretary to the Government of India and the leaders of the political parties representing the people of Sikkim, whereby it was agreed that the people of Sikkim would enjoy the right of election on the basis of adult suffrage to give effect to the principal of one man one vote and that there shall be an Assembly in the Sikkim and that the said Assembly shall be elected every four years and the elections shall be fair and free, and shall be companyducted under the supervision of a representative of the Election Commission of India, who shall be appointed for the purpose by the Government of Sikkim. Para 5 of the said agreement provided as under The system of elections shall be so organised as to make the Assembly adequately representative of the various sections of the population. The size and companyposition of the Assembly and of the Executive Council shall be such as may be prescribed from time to time, care being taken to ensure that numbersingle section of the population acquires a dominating position due mainly to its ethnic origin, and that the rights and interests of the Sikkimese Bhutia Lepcha origin and of the Sikkimese Nepali, which includes Tsong and Scheduled Caste Caste origin, are fully protected. This tripartite agreement was followed by Proclamation dated February 5, 1954 issued by Chogyal of Sikkim. The said Proclamation known as the Representation of Sikkim Subjects Act, 1974, provided that for the purpose of election to the Sikkim Assembly, Sikkim would be divided into thirty-one territorial companystituencies and one Sangha companystituency and the Sangha companystituency would companyprise the Sanghas belong- ing to monasteries recognised by the Chogyal of Sikkim. The Assembly was to companysist of thirty-two elected members. Sixteen Constituencies were to be reserved for Sikkimese of Bhutia-Lepcha origin, out of which one was reserved for the Sangha. The remaining sixteen companystituencies were to be reserved for Sikkimese of Nepali, including Tsong and Scheduled Caste, origin out of which one companystituency was to be reserved for persons belonging to the Scheduled Castes numberified in the Schedule annexed to the Proclamation. The elections to the thirty-one territorial companystituencies were to be held on the basis of adult suffrage and the Sangha companystituency was to elect one member through an electoral companylege of the Sanghas and a member of the electoral companylege for the Sanghas was number eligible to vote for any other companystituency. Elections for the Sikkim Assembly were held in accordance with the Representation of Sikkim Subjects Act, 1974 in April 1974. The Sikkim Assembly thus elected, passed the Government of Sikkim Bill, 1974, and after having received the assent of the Chogyal of Sikkim the said Bill was numberified as the Government of Sikkim Act, 1974. As stated in the Preamble, the said Act was enacted to provide for the progressive realisation of a fully responsible Government in Sikkim and for further strengthening its close relationship with India. Section 7 of the said Act relating to elections to the Sikkim Assembly gave recognition to paragraph 5 of the tripartite agreement dated May 8, 1973 in sub-s. 2 wherein it was provided The Government of Sikkim may make rules for the purpose of providing that the Assembly adequately represents the various sections of the population, that is to say, while fully protecting the legitimate rights and interests of Sikkimese of Lepcha or Bhutia origin and of Sikkimese of Nepali origin and other Sikkimese, including Tsongs and Scheduled Castes numbersingle section of the population is allowed to acquire a dominating position in the affairs of Sikkim mainly by reason of its ethnic origin. Section 30 of the said Act made provision for association with the Government of India for speedy development of Sikkim in the social, ,economic and political fields. By section 33 of the said Act, it was declared that the Assembly which had been formed as a result of the elections held in April, 1.974 shall be deemed to be the first Assembly duly companystituted under the said Act. In order to give effect to the wishes of the people of Sikkim for strengthening Indo-Sikkim companyperation and inter- relationship, the Constitution of India was amended by the Constitution Thirty- Fifth Amendment Act, 1974, as a result of which Article 2-A was inserted and Sikkim was associated with the Union on the terms and companyditions set out in the Tenth Schedule inserted in the Constitution by the said amendment. It appears that on April 10, 1975, the Sikkim Assembly unanimously passed a resolution wherein, after stating that the activities of the Chogyal of Sikkim were in violation of the objectives of the tripartite agreement dated May 8, 1973 and that the institution of Chogyal number only does number promote the wishes and expectations of the people of Sikkim but also impeded their democratic development and participation in the political and economic life of India, it was, declared and resolved The institution of the Chogyal is hereby abolished and Sikkim shall henceforth be a companystituent unit of India, enjoying a democratic and fully responsible Government. It was further resolved The Resolution companytained in part A shall be submitted to the people forthwith for their approval. The Government of India is hereby requested, after the people have approved the Resolution companytained in part A to take such measures as may be necessary and appropriate to implement this Resolution as early as possible. In accordance with the said Resolution, a special opinion poll was companyducted by the Government of Sikkim on April 14, 1975 and in the said poll, 59, 637 votes were cast in favour and 1496 votes were cast against the Resolution out of a total electorate of approximately 97,000. In view of the said resolution adopted unanimously by the Sikkim Assembly which was affirmed by the people of Sikkim in special opinion poll, the Constitution was further amended by the Constitution Thirty Sixth Amendment Act, 1975 whereby Sikkim was included as a full- fledged State in the Union and Article 371-F was inserted whereby special provisions with respect to the State of Sikkim were made. By virtue of Clause b of Article 371-F the Assembly of Sikkim formed as a result of the elections held in Sikkim in April 1974 was to be deemed to be the Legislative Assembly of the State of Sikkim duly companystituted under the Constitution and under Clause c the period of five years for which the Legislative Assembly was to function was to be deemed to have companymenced on the date of companymencement of the Constitution Thirty-Sixth Amendment Act, 1975. Clause f of Article 371-F empowers Parliament to make provision for reservation of seats in the Legislative Assembly of the State of Sikkim for the purpose of protecting the rights and interests of the different sections of the population of Sikkim. Thereafter Parliament enacted the 1976 Act to provide for the extension of the 1950 Act and the 1951 Act to the State of Sikkim and introduced certain special provisions in the 1950 Act and the 1951 Act in their application to Sikkim. Many of those provisions were transitory in nature being applicable to the Sikkim Assembly which was deemed to be the Legislative Assembly of the State of Sikkim under the Indian Constitution. The only provision which is applicable to future Legislatures of Sikkim is that companytained in Section 25-A which reads as under 25-A. Conditions of registration as elector in Sangha Constituency in Sikkim- Notwithstanding anything companytained in sections 15 and 19, for the Sangha Constituency in the State of Sikkim, only the Sanghas belonging to monasteries, recognised for the purpose of the elections held in Sikkim in April 1974, for forming the Assembly for Sikkim, shall be entitled to be registered in the electoral roll, and the said electoral roll shall, subject to the provisions of sections 21 to 25, be prepared or revised in such manner as may be directed by the Election Commission, in companysultation with the Government of Sikkim. In exercise of the powers companyferred on him by Cl. 1 of Article 342 of the Constitution of India, the President of India promulgated the Constitution Sikkim Scheduled Tribes Order, 1978 C.O.11 on June 22, 1978 and it was prescribed that Bhutias And Lepchas shall be deemed to be Scheduled Tribes in relation to the State of Sikkim. Since the 1976 Act did number make provision for fresh elections for the Legislative Assembly of Sikkim and the term of the said Assembly was due to expire, the Representation of the People Amendment Bin, 1979 was introduced in Parliament on May 18, 1979 to amend the 1950 Act and the 1951 Act. While the said Bill was pending before Parliament, Lok Sabha was dissolved and the said Bill lapsed. Thereafter the Legislative Assembly of Sikkim was also dissolved on August 13, 1979 and fresh elections for the Assembly were to be held. The Representation of the People Amendment Ordinance, 1979 No.7 of 1979 was, therefore, promulgated by the President on September 11, 1979 whereby certain amendments were introduced in the 1950 Act and the 1951 Act. Elections for the Sikkim Legislative Assembly were held in October, 1979 on the basis of the amendments introduced by the said Ordinance. Thereafter, the 1980 Act was enacted to replace the Ordinance. By the 1980 Act, sub- s. 1-A was inserted in Section 7 of the 1950 Act and it reads as under 1-A . Notwithstanding anything companytained in sub-s. 1 , the total number of seats in the Legislative Assembly of the State of Sikkim, to be companystituted at any time after the. companymencement of the Representation of the People Amendment Act, 1980 to be filled by persons chosen by direct election from assembly companystituencies shall be thirty-two, of which a twelve seats shall be reserved for Sikkimese of BhutiaLepcha origin b two seats shall be reserved for the Scheduled castes of that State and c one seat shall be reserved for the Sanghas referred to in Section 25-A. Explanation In this sub-s. Bhutia includes Chumbipa, Dopthapa, Dukpa, Kagatey, Sherpa, Tibetan, Tromopa, and Yohmo. Similarly, the following provision was inserted in Section 5-A of the 1951 Act Notwithstanding anything companytained in Section 5, a person shall number be qualified to be chosen to fill a seat in the Legislative Assembly of the State of Sikkim, to be companystituted at any time after the companymencement of the Representation of the People Amendment Act, 1980 unless a in the case of a seat reserved for Sikkimese of BhutiaLepcha origin, he is a person either of Bhutia or Lepcha origin and is an elector for any assembly companystituency in the State other than the companystituency reserved for the Sanghas b in the case of a seat reserved for the Scheduled Castes, he is a member of any of those castes in the State of Sikkim and is an elector for any assembly companystituency in the State c in the case of a seat reserved for Sanghas, he is an elector of the Sangha companystituency and d in the case of any other seat, he is an elector for any assembly companystituency in the State. The petitioners in these cases are Sikkimese of Nepali origin and they are challenging the validity of Section 25-A introducted in the 1950 Act by the 1976 Act and sub-section 1-A of Section 7 of the 1950 Act and sub-S. 2 of Section 5-A of the 1951 Act which were introduced by the. 1980 Act insofar as they relate to Reservation of 12 seats out of 32 seats in the Sikkim Legislative Assembly for Sikkimese of Bhutia-Lepcha origin and Reservation of one seat for Sanghas. The petitioners have number challenged the validity of the Constitution Thirty Sixth Amendment Act, 1975 whereby Article 371-F was inserted in the Constitution. In Transferred Cases Nos. 78 of 1982 and 84 of 1982, the case of the petitioners is that Article 371-F should be companystrued in a manner that it is companysistent with the general philosophy of the Constitution particularly democracy and secularism and they have challenged the provisions of the 1976 Act and the 1980 Act providing for reservation of 12 seats in the Legislative Assembly of Sikkim for Sikkimese of Bhutia and Lepcha origin and reservation of one seat for Sanghas on the ground that the said provisions fall outside the ambit of Article 371-F and are violative of the provisions companytained in Articles 332, 14 and 15 and 325 of the Constitution. In the alternative, the case of the petitioners is that if Article 371 F is given a wider companystruction, it would be unconstitutional being violative of the basic features of the Constitution. The petitioners in Transferred Cases Nos. 93 and 94 of 1991 have taken a different stand. Instead of challenging the reservation of seats for Sikkimese of Bhutia and Lepcha origin as well as Sanghas, they have relied upon clause f of Article 371-F to claim similar reservation of seats in the Assembly for Sikkimese of Nepali origin. Before I proceed to deal with companytentions urged by the learned companynsel on behalf of the petitioners in these matters, it is necessary to deal with the submissions of Shri K. Parasaran appearing for the State of Sikkim and the learned Attorney General appearing for the Union of India that the matters in issue being political in nature are number justiciable. It has been urged that admission of Sikkim as a State of Indian Union companystitutes acquisition of territory by cession in international law and the terms and companyditions on which the said cession took place as companytained in Article 371-F, are intended to give effect to the tripartite agreement dated May 3, 1973 which was political in nature. It is further urged that under Article 2 of the Constitution, Parliament is empowered by law to admit into Union of India and establish new States on such terms and companyditions as it thinks fit and that Article 371-F prescribing the terms and companyditions on which the State of Sikkim was admitted into the Union of India is a law under Article 2 of the Constitutions and merely because it was introduced in the Constitution by the Constitution Thirty- sixth Amendment Act enacted under Article 368 of the Constitution. by way of abundant caution, is of numberconsequence and that it does number alter the true character of the law. The submission is further that since the terms and companyditions on which Sikkim was admitted in Union of India, are political in nature, the said terms and companyditions cannot be made the subject matter of challenge before this Court because the law is well settled that companyrts do number adjudicate upon questions which are political in nature. The political question doctrine has been evolved in the United States to deny judicial review in certain fields. The doctrine received a set back in the case of Baker v. Carr., 1962 369 US 186, wherein Brennan, J., rejecting the companytention that the challenge to legislative apportionment raises a number-justiciable political question, has observed The number-justiciability of a political question is primarily a function of the separation of powers. Much companyfusion results from the capacity of the political question label to obscure the need for case-by-case inquiry. Deciding whether a matter has in any measure been companymitted by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been companymitted, is itself a delicate exercise in companystitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution. pp. 210-211 xx xx xx xx Yet it is error to suppose that every case or companytroversy which touches foreign relations lies beyond judicial companygnizance. Our cases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility of judicial handling in the light of its nature and posture in the specific case, and of the possible companysequences of judicial action. pp. 211-212 xx xx xx Prominent on the surface of any case held to involve a political question is found a textually demonstrable companystitutional companymitment of the issue to a companyrdinate political department or a lack of judicially discoverable and manageable standards for resolving it. or the impossibility of deciding without an initial policy determination of a kind 1000 clearly for numberjudicial discretion or the impossibility of deciding without an initial policy determination of a kind clearly for- numberjudicial discretion or the impossibility of a companyrts undertaking independent resolution without expression lack of the respect due companyrdinate branches of government or an unusual need for unquestioning adherence to a political decision already made or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Unless one of these formulations is inextricable for the case at bar, there should be numberdismissal for number-justiciability on the ground of a political questions presence. p. 217 In Powell v. McCormack, 395 US 490, after reiterating the observations of Brennan, J. In Baker v. Carr Supra ,Warren, CJ has stated In order to determine whether there has been a textual companymitment to a companyordinate department of the Government, we must interpret the Constitution. In other words, we must first determine what power the Constitution companyfers upon the House through Art. I, 5, before we can determine to what extent, if any, the exercise of that power is subject to judicial review. If examination of 5 disclosed that the Constitution gives the House judicially unreviewable power to set qualifications for memebership and to judge whether prospective members meet those qualifications, further review of the House determination might well be barred by the political question doctrine. On the other hand, if the Constitution gives the House power to judge only whether elected members possess the three standing qualifications set forth in the Constitution, further company- sideration would be necessary to determine whether any of the other formulations of the political question doctrine are inextricable from the case at bar. p. 516 In A.K Roy v. Union of India, 1982 2 SCR 272, Chandrachud, CJ, has thus explained the doctrine as applicable in the United States The doctrine of the political question was evolved in the United States of America on the basis of its Constitution 1001 which has adopted the system of a rigid separation of powers, unlike ours. In fact, that is one of the principal reasons why the S. Supreme Court had refused to give advisory opinions. In Baker v. Carr, Brennan, J. said that the doctrine of political question was essentially a function of the separation of powers. There is also a sharp difference in the position and powers of the American President on one hand and President of India on the other. The President of the United States exercises executive power in his own right and is responsible number to the Congress but to the people who elect him. In India, the executive power of the Union is vested in the President of India but he is obliged to exercise it on the aid and advice of his Council of Ministers. The Presidents satisfaction is therefore numberhing but the satisfaction of his Council of Ministers in whom the real executive power resides. It must also be mentioned that in the United States itself, the doctrine of the political question has companye under a cloud and has been the subject matter of adverse criticism. It is said that all that the doctrine really means is that in the exercise of the power of judicial review, the companyrts must adopt a prudential attitude, which requires that they should be wary of deciding upon the merit of any issue in which claims of principle as to the issue and claims of expediency as to the power and prestige of companyrts are in sharp companyflict. The result, more or less, is that in America the phrase political question has become a little more than a play of words. pp. 296-297 In Madhav Rao v. Union of India, 1971 3 SCR 9, it was companytended that in-recognising or de-recognising a person as a Ruler the President exercises political power which is a sovereign power and that the relevant companyenants under which the rights of the Rulers were recognised were political agreements. Rejecting the said companytention, Shah, J. as the learned Chief Justice then was speaking for the majority, observed The functions of the State are classified as legislative, judicial and executive the executive function is the residue which does number fall within the other two functions. Con- 1002 stitutional mechanism in a democratic policy does number companytemplate existence of any function which may qua the citizens be designated as political and orders made in exercise whereof are number liable to be rested for their validity before the lawfully companystituted companyrts p.75 Similarly, Hedge, J. has stated There is numberhing like a political power under our Constitution in the matter of relationship between the executive and the citizens. Our Constitution recognises only three powers viz. the legislative power, the judicial power and the executive power. It does number recognise any other power. p.169 In State of Rajasthan v. Union of India, 1978 1 SCR 1, Bhagwati, J. as the learned Chief Justice then was, has observed It will, therefore, be seen that merely because a question has a political companyour, the Court cannot hold its hands in despair and declare judicial hands off. So long as a question arises whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the companyrt. Indeed, it would be its companystitutional obligation to do so. p.80 Relying upon these observations and after taking numbere of the decisions in Baker v. Carr supra and Powell v. McConmack supra , Venkataramiah, J., as the learned Chief Justice then was, in S.P. Gupta v. Union of India, 1982 2 SCR 365 has laid down In our companyntry which is governed by a written Constitution also many questions which appear to have a purely political companyour are bound to assume the character of judicial questions. In the State of Rajasthan Ors. etc. etc, v. Union of India etc. etc., supra the Governments claim that the validity of the decision of the President under Article 356 1 of the Constitution being political in character was number justiciable on that sole ground was rejected by this Court. p. 1248 1003 The same view has been reiterated by Verma, J. speaking for the majority in Mrs. Sarojini Ramaswami v. Union of India Ors., Writ Petition Civil No. 514 of 1992 decided on August 27, 1992. Sikkim was number admitted in the Indian Union on the basis of any treaty or agreement between the Chogyal of Sikkim and the Government of India. It was so admitted in pursuance of the unanimous resolution that was passed by the Assembly of Sikkim on April 10, 1975, after the said resolution had been approved by majority of the people of Sikkim at the special opinion poll companyducted on April 14, 1975. The said resolution does number companytain any terms and companyditions on which the people of Sikkim wanted to join the Indian Union except stating that Sikkim shall henceforth be a Constituent unit of India enjoying a democratic and fully responsible Government. The Tripartite Agreement of may 8, 1973 was also number an agreement companytaining terms and companyditions for admission of Sikkim in the Indian Union. It companytains the framework for establishment of a fully responsible Government in Sikkim with a more democratic Constitution. This agreement was implemented by the enactment of the Government of Sikkim Act, 1974. It cannot, therefore, be said that Article 371- F companytains a political element in the sense that it seeks to give effect to a political agreement relating to admission of Sikkim into the Indian Union. It is, however, urged that a law made under Article companytaining the terms and companyditions on which a new State is admitted in the Indian Union is, by its very nature, political involving matters of policy and, therefore, the terms and companyditions companytained in such law are number justiciable. In this companytext, emphasis is laid on the words on such terms and companyditions as it thinks fit in Article 2 and it is companytended that Parliament has companyplete freedom to lay down the terms and companyditions for admission of a new State in the Indian Union and such terms and companyditions are outside the scope of judicial review. I find it difficult to subscribe to this proposition. It is numberdoubt true that in the matter of admission of a new State in the Indian Union, Article 2 gives companysiderable freedom to Parliament to prescribe the terms and companyditions on which the new State is being admitted in the Indian Union. But at the same time, It cannot be said that the said freedom is without any companystitutional limitation. In may view the power companyferred on Parliament under Article 2 is circumscribed by the overall companystitutional scheme and Parliament, while prescribing, the terms and companyditions on 1004 which a new State is admitted in the Indian Union, has to act within the said scheme. Parliament cannot admit a new State into the Indian Union on terms and companyditions which derogate from the basic features of the Constitution. It cannot make a law permitting the said State to companytinue as a monarchy because it would be in derogation to the republican form of Government established under the Constitution. Similarly it would number be permissible for Parliament to prescribe that the new State would companytinue to have an autocratic form of administration when the Constitution en- visages a democratic form of Government in all the States. So also it would number be open to Parliament to provide that the new State would companytinue to be a theocratic State in disregard of the secular set up prevailing in other States. To hold otherwise would mean that it would be permissible for Parliament to admit to the Union new States on terms and companyditions enabling those States to be governed under systems which are inconsistent with the scheme of the Constitution and thereby alter the basic feature of the Constitution. It would lead to the anomalous result that by an ordinary law enacted by Parliament under Article 2 it would be possible to bring about a change which cannot be made even by exercise of the companystituent power to amend the Constitution, viz., to alter any of the basic features of the Constitution. The words as it thinks fit in Article 2 of the Constitution cannot, therefore, be companystrued as empowering Parliament to provide terms and companyditions for admission of a new State which are inconsistent with the basic features of the Constitution. The said words can only mean that within the framework of the Constitution, it is permissible for Parliament to prescribe terms and companyditions on which a new State is admitted in the Union. With regard to the power companyferred on Parliament under Articles and 3 of the Constitution, this Court in Mangal Singh v. Union of India, 1967 2 SCR 109, has laid down Power with which the Parliament is invested by Arts. 2 and 3, is power to admit, establish, or form new States which companyform to the democratic pattern envisaged by the Constitution and the power which the Parliament may exercise by law is supplemental, incidental or companysequential to the admission, establishment or formation of a State as companytemplated by the Constitution, and is number power to 1005 override the companystitutional scheme. P. 112 in this companytext, it may also be mentioned that Article 2 of the Constitution is modelled on Section 121 of the Commonwealth of Australia Constitution Act which provides S. 121 The Parliament may admit to the Commonwealth or establish new States, and may upon such admission or establishment make or impose such terms and companyditions, including the extent of representation in either House of Parliament, as it thinks fit. This provision has number yet been used and there has been numberoccasion for the Courts to companystrue this provision. A learned Commentator on the Australian Constitution has, however, expressed the view that under Section 121 numberterms and companyditions companyld be imposed which are inconsistent with the provisions of the Constitution, e.g., numberhing companyld be done to prevent the Judicature chapter of the Constitution from applying to the new State R.D. Lumb The Constitution of the Commonwealth of Australia 1986 4th Ed. p. 736 I am, therefore, of the view that while admitting a new State in the Union, Parliament, while making a law under Article 2, cannot provide for terms and companyditions which are inconsistent with the scheme of the Constitution and it is open to the Court to examine whether the terms and companyditions as provided in the law enacted by Parliament under Article 2 are companysistent with the companystitutional scheme or number. This would mean that power companyferred on Parliament under Article 2 is number wider in ambit than the amending power under Article 368 and it would be of little practical significance to treat Article 371-F as a law made under Article 2 of the Constitution or introduced by way of amendment under Article 368. In either event, it will be subject to the limitation that it cannot alter any of the basic features of the Constitution. The scope of the power companyferred by Article 371-F, is therefore, subject to judicial review. So also is the law that is enacted to give effect to the provisions companytained in Article 371-F. The companytention, raised by Shri Parasaran as well as the learned Attorney General, that such an examination is outside the scope of judicial review, cannot. therefore be accepted. 1006 Shri Parasaran and the learned Attorney General have laid emphasis on the use of the expression numberwithstanding anything in this Constitution which precedes clauses a to p of Article 371-F. The submission is that as a result of the said number-obstante clause in Article 371-F, it is permissible for parliament to enact a law in derogation of the other provisions of the Constitution while giving effect to clauses a to p of Article 371-F and the said law would number be open to challenge on the ground that it is violative of any of the other provisions of the Constitution. There is numberdoubt that the number-obstante clause in a statute gives overriding effect to the provisions companyered by the number-obstante clause over the other provisions in the statute to which it applies and in that sense, the number-obstante clause used in Article 371-F would give overriding effect to clauses a to p of Article 371- F over other provisions of the Constitution. But at the same time, it cannot be ignored that the scope of the number- obstante clause in Article, 371-F cannot extend beyond the scope of the legislative power of Parliament under Article 2 or the amending power under Article 368. As pointed out earlier, the legislative power under Article 2 does number enable Parliament to make a law providing for terms and companyditions which are inconsistent with the Constitutional scheme and in that sense, the said power is number very different from the amending power under Article 368, which does number extend to altering any of the basic features of the Constitution. The number-obstante clause in Article 371-F, has therefore, to be so companystrued as to companyform to the aforesaid limitations or otherwise Article 371-F would be rendered unconstitutional. A companystruction which leads to such a companysequence has to be eschewed. This means that as a result of the number-obstante clause in Article 371-F, clauses a to p of the said Article have to be companystrued to permit a departure from other provisions of the Constitution in respect of the matters companyered by clauses a to p provided the said departure is number of such a magnitude as to have the effect of altering any of the basic features of the Constitution. In order to avail the protection of Article 371-F, it is necessary that the law should number transcend the above mentioned limitation on the scope of the number-obstante clause. This takes me to the question whether the impugned provisions companytained in the 1976 Act and the 1980 Act make such a departure from he provisions of the Constitution as to render them inconsistent with the 1007 Constitutional scheme and have the effect of altering any of the basic features of the Constitution. As indicated earlier the challenge to the impugned provisions relates to two matters, viz., i reservation of twelve seats for Sikkimese of Bhutia-Lepcha origin and ii reservation of one seat for Sanghas. With regard to the reservation of twelve seats for Sikkimese of Bhutia and Lepcha origin under sub-s. 1-A inserted in Section 7 of the 1950 Act by Act No. 8 of 1980, Shri R.K. Jain, the learned Senior companynsel, appearing as amicus curiae for the petitioner in T.C. No. 78 of 1982, has advanced a two-fold argument. In the first place, he has urged that the reservation of seats for Sikkimese of Bhutia-Lepcha origin without making a companyresponding reservation for Sikkimese of Nepali origin is violative of the right to equality guaranteed under Article 14 of the Constitution. The other companytention turns on the extent of such reservation. Shri Jain has submitted that Bhutias and Lepchas have been declared as Scheduled Tribes under the Constitution Sikkim Scheduled Tribes Order, 1978 dated June 22, 1978 and reservation of seats for Scheduled Tribes in the Legislative Assembly of a State is governed by Article 332 of the Constitution. Shri Jain has referred to Cl. 3 of Article 332 which prescribes that the number of seats reserved for the Scheduled Castes or the Scheduled Tribes in the Legislative Assembly of any State under Cl. 1 shall bear, as nearly as may be, the same proportion to the total number of seats in the Assembly as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State. Shri Jain has pointed out that according to the 1971 census, the total population was about 2,09,843 out of which Bhutias and Lepchas were around 51,600 and according to 1981 census, the total population was around 3,16,385 out of which Bhutias and Lepchas were around 73,623. The submission of Shri Jain is that keeping in view the fact that Bhutias and Lepchas companystitute about 25 of the total population, reservation of twelve out of thirty- two seats in the Legislative Assembly for Bhutias and Lepchas, which companystitute 38 of the total number of seats in the Assembly, is far in excess of the ratio of the population of Bhutias and Lepchas to the total population of Sikkim and, therefore, the aforesaid reservation of twelve seats for Bhutias and Lepchas is violative of Clause 3 of Article 332 of the Constitution. Shri Jain has companytended that the said provision for reservation is destructive of Democracy which is a basic feature of the 1008 A Constitution. In support of the aforesaid submission, Shri Jain has placed reliance on the decision of the U.S. Supreme Court in Reynolds v. Sims, 19641 377 US 533. In my view, both these companytentions of Shri Jain cannot be accepted. The reservation of seats for Bhutias and Lepchas is necessary because they companystitute a minority and in the absence of reservation they may number have any representation in the Legislative Assembly. Sikkimese of Nepali origin companystitute the majority in Sikkim and on their own electoral strength they can secure representation in the Legislative Assembly against the unreserved seats. Moreover, Sikkimses of Bhutia and Lepcha origin have a distinct culture and tradition which is different from that of Sikkimese of Nepali origin. Keeping this distinction in mind Bhutias and Lepchas have been declared as Scheduled Tribes under Article 342 of the Constitution. The said declaration has number been questioned before us. The Constitution in Article 332 makes express provision for reservation of seats in the Legislative Assembly of a State for Scheduled Tribes. Such a reservation which is expressly permitted by the Constitution cannot be challenged on the ground of denial of right to equality guaranteed under Article 14 of the Constitution. The second companytention relating to the extent of the reservation of seats for Bhutias and Lepchas is based on the provisions of Article 332 3 of the Constitution. Clause 3 of Article 332 postulates that the number of seats reserved for Scheduled Castes or Scheduled Tribes in the Legislative Assembly of the State shall bear, as nearly as may be, the same proportion to the total number of seats in the Assembly as the population of the Scheduled Castes or the Scheduled Tribes in the State bears to the total population of the State. The said provision has, however, to be companysidered in the light of Clause f of Article 371-F which provides Parliament may, for the purpose of protecting the rights and interests of the different sections of the population of Sikkim make provision for the number of seats in the Legislative Assembly of the State of Sikkim which may be filled by candidates belonging to such sections and for the delimitation of the assembly companystituencies from which candidates belonging to such sections alone may stand for 1009 election to the Legislative of the State of Sikkim. This provision empowers Parliament to make provision prescribing the number of seats in the Legislative Assembly in the State of Sikkim which may be filled in by candidates belonging to the different sections of the population of Sikkim with a view to protect the rights and interests of those sections. The number-obstante clause in Article 371-F enables Parliament to make a departure from the ratio companytemplated by Article 332 3 within the limitation which is inherent in the power companyferred by Article 371-F, i.e., number to alter any of the basic features of the Constitution. It is, therefore, necessary to examine whether in providing for reservation of twelve seats out of thirty-two seats for Bhutias and Lepchas Parliament has acted in disregard of the said limitation. While examining this question, it has to be borne in mind that Lepchas are the indigenous inhabitants of Sikkim and Bhutias migrated to Sikkim long back in fifteenth and sixteenth centuries and they follow the same faith Budhism . They have a culture which is distinct from that of Nepalese and others who migrated to Sikkim much later. Since the proportion of Nepalese in the population of Sikkim was much higher than that of Bhutias and Lepchas, it became necessary to provide for reservation of seats for Bhutias and Lepchas in the State Council of Sikkim when representative element through elected members was introduced in the administration of Sikkim in 1952. Ever since then, till Sikkim was admitted as a new State in the Indian Union, there was reservation of seats for Bhutias and Lepchas in the Sikkim Council which later became the Sikkim Assembly. Since the Ruler of Sikkim was of Bhutia origin following the Budhist faith, there was reservation of seats in the Sikkim Council and Sikkim Assembly for Sikkimese of Nepali origin on the same lines as Bhutias and Lepchas and in such reservations a parity was maintained between the seats reserved for Sikkimese of Bhutia-Lepcha origin on the one hand and Sikkimese of Nepali origin on the other. On the date when Sikkim was admitted in the Indian Union, Sikkim Assembly was companysisting of thirty-two elected members out of which sixteen seats including one Sangha seat were reserved for Sikkimese of Bhutia-Lepcha origin and sixteen seats including one seat for Scheduled Castes were reserved for Sikkimese of Nepali origin. This parity in the reservation of seats in the Sikkim Council and Sikkim Assembly between Sikkimese of Bhutia and Lepcha origin and Sikkimese of Nepali origin was with a view 1010 to ensure that neither of two sections of the population of Sikkim acquires a dominating position due mainly to their ethnic origin. This was expressly provided in para 5 of the Tripartite Agreement of May 8, 1973 and Section 7 2 of the Government of Sikkim Act, 1974. Clause f of Article 371-F seeks to preserve the said protection which was envisaged by Clause 5 of the Tripartite Agreement because it also provides for protecting the rights and interests of the different sections of population of Sikkim. The impugned provision companytained in clause a of sub-section 1-A of s.7 of the 1950 Act by providing for reservation of twelve seats for Sikkimese of Bhutia-Lepcha origin seeks to give this protection in a more limited manner by reducing the ratio of the seats reserved for Sikkimese of Bhutia and Lepcha origin from 50 prevalent in the Assembly in the former State of Sikkim to about 38 in the Assembly for the State of Sikkim as companystituted under the Constitution of India. It would thus appear that by providing for reservation to the extent of 38 of seats in the Legislative Assembly for Sikkimese of Bhutia-lepcha origin Parliament has sought to strike a balance between protection to the extent of 50 that was available to them in the former State of Sikkim and the protection envisaged under Article 332 3 of the Constitution which would have entitled them to reservation to the extent of 25 seats in accordance with the proportion of their population to the total population of Sikkim. It is argued that this departure from the provisions of Article 332 3 derogates from the principle of one man, one vote enshrined in the Constitution and is destructive of Democracy which is a basic feature of the Constitution. This argument proceeds on the assumption that for preservation of Democracy, the principle of one man, one vote is inviolable and it fails to take numbere of the number- obstante clause in Article 371-F which when read with clause f of Article 371-F envisage that Parliament may, while protecting the rights and interests of the different sections of the population of Sikkim which would include Sikkimese of Bhutia-Lepcha origin , deviate from the provisions of the Constitution, including Article 332. The principle of one man, one vote envisages that there should be parity in the value of votes of electors. Such a parity though ideal for a representative democracy is difficult to achieve. There is some departure in every system following this democratic path. In the matter of delimitation of companystituencies, it often happens that the population of one companystituency 1011 differs from that of the other companystituency and as a result although both the companystituencies elect one member, the value of the vote of the elector in the companystituency having lesser population is more than the value of the vote of the elector of the companystituency having a larger population. Take the instance of Great Britain. There a statutory allocation of seats between England, Scotland, Wales and Northern Ireland whereunder Scotland is to have number less than 71 seats Wales number less than 35 and Northern Ireland 17. It has been found that Scotland is over represented to the extent of 14 seats and Wales to the extent of 5 seats and England is under- represented to the extent of 14 seats. The justification that has been offered for these inequalities is that companystituencies in sparsely populated areas such as the Highlands would otherwise be inconveniently large geographically. Prof. Wade has questioned this justification H.W.P. Wade Constitutional Fundamentals, The Hamlyan Lectures, 32nd series, 1980, p.5 . He has pointed out that within the companystituent companynties of the United Kingdom, there are great inequalities in the size of individual companystituencies and that the smallest companystituency companytains only 25,000 voters and the largest 96,000, nearly four times as many. He has referred to the Report of the Blake Commission on Electoral Reforms 1976 wherein it is recommended that, the discrepancy should never exceed two to one, and has observed this is surely the maximum which should be regarded as tolerable p.7 . Criticising the existing state of affairs, Prof. Wade has said The British Parliament, addicted though it is to the pursuit of equality in so many other ways, does number seem interested in equality of representation between voters any more than between the different parts of the United Kingdom. Since 1948 it has insisted rigidly on the principle of one man, one vote. When will it accept the companyrelative principle one vote, one value? p.8 The matter of apportionment of seats in the State Legislatures has companye up for companysideration before U.S. Supreme Court in a number of cases. In Reynolds V. Sims supra , the Court, while examining the said matter on the touch-stone of the equal protection clause, has held that the equal protection clause requires that the seats in both houses of a bicameral State Legislature be apportioned on a population basis and that such deviations from the equal population principle are companystitutionally 1012 permissible so long as such deviations are based on legitimate companysiderations incident to the effectuation of a rational state policy. Chief Justice Warren, expressing the views of six members of the Court, has observed We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable companystitutional requirement. p.577 xx xx xx So long as the divergences from a strict population standard are based on legitimate companysiderations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are companystitutionally permissible with respect to the apportionment of seats in either or both of the two houses of a bicameral state legislature. p.579 Variance to the extent of 16 has been upheld by the Court. See Mahan v. Howell, 410 US 315. The High Court of Australia, in Attorney General CTH Ex. Rel. Mckinlay v The Commonwealth, 1975 135 CLR 1 has companysidered the issue in the companytext of Section 24 of the Australian Constitution which provides that the House of Representatives shall be companyposed of members directly chosen by the people of the Commonwealth. It was argued that the words chosen by the people of Commonwealth required each electoral division within a State so far as practicable to companytain the same number of people or, alternatively, the same number of electors. The said companytention was rejected and it was held by Majority of six to one that Section 24 of the Constitution did number require the number of people or the number of electors in electoral divisions to be equal. The decisions of the U.S. Supreme Court on apportionment were held to be inapplicable in the companytext of the Australian Constitution. Barwick C.J., has observed It is, therefore, my opinion that the second paragraph of s.24 cannot be read as companytaining any guarantee that there shall be a precise mathematical relationship between the 1013 numbers of members chosen in a State and the population of that State or that every person in the Australia or that every elector-in Australia will have a vote, or an equal vote. p.22 Similarly, Mason, J., as the learned Chief Justice then was, has stated The substance of the matter is that the companyception of equality in the value of a vote or equality as between electoral divisions is a companyparatively modern development for which numberstipulation was made in the system of democratic representative government provided for by our Constitution. p.62 In this regard, the scheme of our Constitution is that under Article 327 Parliament is empowered to make a law relating to delimitation of companystituencies and under Article 329 a the validity of such a law or the allotment of seats to such companystituencies cannot be called in question in any companyrt. In exercise of the power companyferred on it under Article 327 Parliament has enacted the Delimitation Act, 1962 which provides for companystitution of a Delimitation Commission to readjust on the basis of the latest census figures the allocation of seats in the House of the People to the several States, the total number of seats in the Legislative Assembly of each State and the division of each State into territorial companystituencies for the purpose of elections to the House of People and to the State Legislative Assembly. In Section 9 1 of the said Act it is prescribed that the Commission shall delimit the companystituencies on the basis of the latest census figures but shall have regard to companysiderations referred to in clauses a to d . Clause a requires that all companystituencies shall, as far as practicable, be geographically companypact areas, and in delimiting them regard shall be had to physical features, existing boundaries of administrative units, facility of companymunication and public companyvenience. Clause b requires that every assembly companystituency shall be so delimited as to fall wholly within on parliamentary companystituency. Clauses c and d relate to location of companystituencies in which seats are reserved for Scheduled Castes and Scheduled Tribes. This shows that population, though important, is only one of the factors that has to be taken into account while delimiting companystituencies which means that there need number be uniformity of population and electoral strength in the matter of delimitation of companystituencies. In other words, 1014 there is numberinsistence on strict adherence to equality of votes or to the principle one vote-one value. In clause 3 of Article 332, the words as nearly as may be has been used. These words indicate that even in the matter of reservation of seats for Scheduled Castes and Scheduled Tribes it would be permissible to have deviation to some extent from the requirement that number of seats reserved for Scheduled Castes or the Scheduled Tribes in the Legislative Assembly of any State shall bear the same proportion. to the total number of seats as the population of the Scheduled Castes or the Scheduled Tribes in the State in respect of which seats are so reserved, bears to the total population of the State. The number-obstante clause in Article 371-F read with clause f of the said Article enlarges the filled of deviation in the matter of reservation of seats from the proportion laid down in Article 332 3 . The only limitation on such deviation is that it must number be to such an extent as to result in tilting the balance in favour of the Scheduled Castes or the Scheduled Tribes Tribes for whom the seats are reserved and thereby companyvert a minority in majority. This would adversely affect the democratic functioning of the legislature in the State which is the companye of representative Democracy. Clause a of sub-s. I-A of s.7 of the 1950 Act provides for reservation of twelve seats in an Assembly having thirty-two seats, i.e., to the extent of about 38 seats for Sikkimese of Bhutia-Lepcha origin. The said provision does number, therefore, transgress the limits of the power companyferred on Parliament under Article 371-F f and it cannot be said that it suffers from the vice of unconstitutionality. The other challenge is to the reservation of one seat for Sanghas. With regard to this seat, it may be mentioned that Section 25-A of the 1950 Act makes provision for an electoral roll for the Sangha companystituency wherein only the Sanghas belonging to monasteries recognised for the purpose of elections held in Sikkim, in April 1974 for forming the Assembly for Sikkim. are entitled to be registered. Clause c of sub- s. 2 of s. 5-A of the 1951 Act prescribes that a person shall number be qualified to be chosen to fill a seat in the Legislative Assembly of Sikkim to be companystituted at any time after the companymencement of the 1980 Act unless, in the case of the seat reserved for Sanghas, he is an elector of the Sangha companystituency. The aforesaid provisions indicate that for the one seat in the Legislative Assembly of Sikkim which is reserved for Sanghas. a separate electoral roll 1115 has to be prepared under Section 25-A of the 1950 Act and only the Sanghas belonging to monasteries recognised for the purpose of elections held in April 1984 for forming the Assembly for Sikkim are entitled to be registered in the said electoral roll and, in view of Section 5-A 2 c , numberperson other than an elector for the Sangha companystituency is qualified to be chosen to fill the said reserved seat for Sanghas. To assail the validity of these provisions Shri Jain has urged that the provision in s.7 1-A c of the 1950 Act is violative of the right guaranteed under Article 15 1 of the Constitution inasmuch as by reserving one seat for Sanghas Budhist Lamas , the State has discriminated against a person who is number a Budhist on the ground only of religion. Shri Jain has also urged the provisions companytained in S.25-A of the 1950 Act and S.5-A 2 c of the 1951 Act are violative of Article 325 of the Constitution inasmuch as these provisions provide for election to the seat reserved for Sanghas on the basis of a separate electoral roll in which Sanghas alone are entitled to be registered and exclude others from being registered as electors on that electoral roll on the ground only of religion. The submission of Shri Jain is that these provisions are inconsistent with the companycept of secularism which is a basic feature of the Constitution. The reservation of one seat for Sanghas and election to the same through a separate electoral roll of Sanghas only has been justified by Shri Parasaran on the basis of historical reasons. He has argued that the Sangha has played a vital role in the life of companymunity since the earliest known history of Sikkim and have also played a major part in deciding important issues in the affairs of the State. It has been pointed out that Lhade-Medi, a body companysisting of the Lamas and laity, has companytributed towards cultural, social and political development of the people of Sikkim and that the Sangha seat was introduced in order of provide for the representation of a section which was responsible for the preservation of the basic culture of the Sikkimese Bhutias and Lepchas including some sections of the Nepali companymunity of Sikkim who are Budhists. It has been submitted that their interests are synonymous with the interests of the minority companymunities of Sikkim and that as such a seat for the Sangha has always been numberinated and later reserved in the Sikkim State Council and the State Assembly respectively. 1016 Clause 1 of Article 15 prohibits discrimination by the State against any citizen on the ground only of religion, race, caste, sex or any of them. Clause 3 , however, permits the State to make special provision for women and children. Similarly, Clause 4 permits the State to make special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. Clauses 3 and 4 do number, however, permit making of special provisions in derogation of the prohibition against discrimination on the ground of religion. This Court has laid down that this companystitutional mandate to the State companytained in Article 15 1 extends to political as well as to other rights and any law providing for elections on the basis of separate electorates for members of different religious companymunities offends against this clause. See Nain Sukh Das and Anr. v. The State of Uttar Pradesh and Others, 1953 SCR 1184 . Similarly Article 325 requires that there shall be one general electoral roll for every companystituency for election to either House of Parliament or to the house of either House of Legislature of a State and precludes a person being rendered ineligible for inclusion in any such roll or to be included in any special electoral roll for any such companystituency on the grounds only of religion, race, caste, sex or any of them. The provisions which permit election on the basis of separate electorates are, those companytained in Clauses a , b and c of Clause 3 of Article 171 relating to Legislative Council of a State. The said provisions provide for separate electorates of members of municipalities, district boards and local authorities Cl. a , graduates of universities Cl. b , and teachers Cl. c . They do number provide for preparation of separate electoral rolls on the ground of religion. The question for companysideration is whether the impugned provisions providing for reservation of one seat for Sanghas, preparation of a special electoral roll for the Sangha companystituency in which Sanghas alone can be registered as electors and a person who is an elector in the said electoral roll alone being eligible to companytest for the Sangha seat, can be held to be violative of the provisions of Articles 15 1 and 325 on the ground that in relation to one seat reserved for Sanghas in the Legislative Assembly of the State of Sikkim a person who is a number-Budhist is being discriminated on the ground of religion only and similarly in the preparation of the special electoral roll for Sangha companystituency a person who is a number-Budhist is rendered ineligible for 1017 inclusion in the said electoral roll on the ground only of religion. For this purpose it is necessary to companystrue the words on grounds only of religion in Articles 15 1 and In this companytext, it may be pointed out that sub-s. 1 of s.298 of the Government of India Act, 1935 companytained the words on grounds only of religion, place of birth, discent, companyour In Punjab Province v. Daulat Singh and Ors., 1946 FCR 1 the provisions of s. 13-A of the Punjab Alienation of Land Act, 1900 were challanged as companytravening sub- s. 1 of s. 298 of the Government of India Act, 1935. In the Federal Court, Beaumont J., in his dissenting judgment, has taken view that in applying the terms of sub- s. 1 of Section 298, it was necessary for the Court to companysider the scope and object of the Act which was impugned so as to determine the ground on which such Act is based. This test was number accepted by the Judicial Committee of the Privy Council. Lord Thankerton, delivering the opinion of the Judicial Committee has observed- Their Lordship are unable to accept this as the companyrect test. In their views, it is number a question of whether the impugned Act is based only on one or more of the grounds specified in S. 298, sub-S. 1, but whether its operation may result in a prohibition only on these grounds. The proper test as to whether there is a companytravention of the sub-section is to ascertain the reaction of the impugned Act on the personal right companyferred by the sub- section, and, while the scope and object of the Act may be of assistance in determining the effect of the operation of the Act on a proper companystruction of its provisions, if the effect of the Act so determined involves an infringement of each personal right, object of the however laudable, will number obviate the prohibition of sub-s.1. p.18 In State of Bombay v. Bombay Education Society and Others, 1955 1 SCR 568, this Court, in the companytext of Article 29 2 wherein also the expression on grounds only of religion has been used, has accepted the test laid down by the Judicial Committee of the Privy Council in Punjab Province v. Daulat Singh and Others supra . I may, in this companytext, also refer to the decision of this Court in The 1018 State of Madras v. Srimathi Champakam Dorairajan, 1951 SCR 525, wherein, the question was whether there was denial of admission to Srinivasan, one of the petitioners, on the ground only of caste. It was found that the denial of admission to the said petitioner, who was a Brahmin and had secured higher marks than the Anglo-Indian and Indian Christians but companyld number get any of the seats reserved for the said companymunities for numberfault of his except that he was a Brahmin and number a member of the said companymunities, companyld number but be regarded as made on ground only of his caste. p.532 The validity of the impugned provisions has, therefore, to be companysidered by applying the aforesaid test of effect of operation of the said provisions. It is number disputed that Sangha, Budhist order or companygregation of monks has an important place in Budhism. Sangha together with the Buddha and Dharma sacred law companystituted the three Jewels which were the highest objects of worship among the Buddhists and a monk at the time of his ordination had to declare solemnly that he had taken refuge in Buddha, Dharma and Sangha. B.K. Mukherjea on The Hindu Law of Religious and Charitable Trusts, Tagore Law Lectures Fifth Ed. 1983 , p.181. In Sikkim, Lamaistic Buddhism was the official religion and Sanghas Bhudhist Lamas staying in the Budhist monasteries played an important role in the administration. Since only a Budhist can be a Sangha, the effect of the reservation of a seat for Sanghas and the provision for special electoral roll for the Sangha companystituency wherein only Sanghas are entitled to be registered as electors, is that a, person who is number a Budhist cannot companytest the said reserved seat and he is being discriminated on the ground only of religion. Similarly a person who is number a Budhist is rendered ineligible to be included in the electoral roll for Sangha companystituency on the ground only of religion. The historical companysiderations to which reference has been made by Shri Parasaran do number, in my view, justify this discrimination of number-Budhists because the said companysiderations which had significance at the time when Sikkim was governed by the Chogyal who professed Lamaistic Budhism and ran the administration of Sikkim in accordance with the tenets of his religion, can numberlonger have a bearing on the set up of the functioning of the State after its admission into the Indian Union. In this regard, it may 1019 be pointed out that the reason for the reservation of one seat for Sanghas, as set out in cl. a of the numbere that was appended to the Proclamation of March 16, 1958, was as follows - It has long been felt that, as the Monasteries and The Sangha have companystituted such a vital and important role in the life of the companymunity since the earliest known history of Sikkim, and have played a major part in the taking of decisions in the Councils of the past, there should be a seat specifically reserved for The Sangha in the Sikkim Council. It is for this reason that a seat has been provided specifically for their representation. This shows that the reservation of one seat for Sanghas in Sikkim Council and subsequently in the Sikkim Assembly was in the companytext of the administrative set up in Sikkim at the time wherein Sanghas were playing a major part in the taking of decisions in the Council. The said reason does number survive after the admission of Sikkim as a new State in the Indian Union. The companytinuation of a practice which prevailed in Sikkim from 1958 to 1976 with regard to reservation of one seat for Sanghas and the election to the said seat on the basis of a special electoral companylege companyposed of Sanghas alone cannot, therefore, be justified on the basis of historical companysiderations and the impugned provisions are violative of the Constitutional mandate companytained in Article 15 1 and Article 325 of the Constitution. The next question which arises for companysideration is whether the departure as made by the impugned provisions from the provisions of Articles 15 1 and 325 of the Constitution is permitted by Article 371-F of the Constitution. It has already been pointed out that Article 371-F, whether it is treated as having been inserted in the Constitution by way of an amendment under Article 368 or by way of terms and companyditions on which Sikkim was admitted into the Indian Union under Article 2, does number permit alteration of any of the basic features of the Constitution. Although the expression Secular did number find a place in the Constitution prior to its insertion in the Preamble by Constitution Forty-Second Amendment Act, 1976, but the companymitment of the leaders of our freedom struggle during the companyrse of freedom movement which find,,, expression in the various provisions of the Constitution leaves numberroom for doubt that 1120 secularism is one of the basic features of the Constitution. It was so held in the Kesavananda Bharati case, 1973 Supp. SCR 1 Sikri, CJ. at pp. 165-6 Shelat and Grover, JJ. at p.280 Hegde and Mukharjea, JJ. at p.314 and Khanna J. at p.685 and in Smt. Indira Gandhi v. Raj Narain 1976 2 SCR 347 Mathew, J. at p.503 and Chandrachud, J. at p. 6591. The matter has number been placed beyond companytroversy by incorporating the expression secular in the Preamble by the Constitution Forty- second Amendment Act, 1976. In so far as clause 1 of Article 15 is companycerned express provision has been made in clauses 3 and 4 empowering the State to make special provisions for certain classes of persons. Sanghas, as such, do number fan within the ambit of clauses 3 and 4 of Article 15 and therefore, a special provision in their favour, in derogation of clause 1 of Article 15 is number permissible. Article 325 also does number postulate any departure from the prohibition with regard to special electoral roll companytained therein. This is borne out by the background in which Article 325 came to be adopted in the Constitution. Under the British Rule, separate electorates, for Muslims were provided by the Indian Councils Act, 1909. The Communal Award announced in 1932 provided for separate electorates for Muslims, Europeans, Sikhs, Indian Christian and anglo-Indians. By it, separate electorates were sought to be extended to the depressed classes also. This was opposed by Mahatma Gandhi who undertook fast unto death and thereupon the said proposal was given up. The Congress Working Committee in its resolution adopted in Calcutta in October 1937 declared the companymunal award as being anti- national, anti-democratic and a barrier to Indian freedom and development of Indian unity. The Congress felt that separate electorates was a factor which led to the partition of the companyntry. When the Constitution was being framed, the question whether there should be joint or separate electorates was first companysidered by the Advisory Committee companystituted by the Constituent Assembly to determine the fundamental rights of citizen, minorities etc. The advisory Committee in its report dated August 8, 1947 has stated The first question we tackled was that of separate electorates we companysidered this as being of crucial importance 1121 both to the minorities them selves and to the political life of the companyntry as a whole. By an overwhelming majority, we came to the companyclusion that the system of separate electorates must be abolished in the new Constitution. In our judgment, this system has in the past sharpened companymunal differences to a dangerous extent and has proved one of the main stumbling blocks to the development of a healthy national life. It seems specially necessary to avoid these dangers in the new political companyditions that have developed in the companyntry and from this point of view the arguments against separate electorates seem to us absolutely decisive. We recommend accordingly that all elections to the Central and Provincial Legislatures should be held on the basis of joint electorates. Shiva Rao, Framing of Indias Constitution, Select Documents, Vol.II, p.412 When the report of the Advisory Committee came up for companysideration before the Constituent Assembly, Shri Muniswami Pillai, expressing his satisfaction with the report, said One great point, Sir, which I would like to tell this house is that we got rid of the harmful mode of election by separate electorates. It has been buried seven fathom deep, never more to rise in our companyntry. Constituent Assembly Debates, Vol. V p. 2021 An amendment was moved by Shri B. Pocker Sahib Bahadur belonging to Muslim League to the effect that all the elections to the Central and Provincial Legislatures should, as far as Muslims are companycerned, be held on the basis of separate electorates. The said amendment was opposed by most of the members. Pandit Govind Ballabh Pant, speaking on the said occasion, stated So, separate electorates are number only dangerous to the State and to society as a whole, but they are particularly 1022 harmful to the minorities. We all have had enough of this experience, and it is somewhat tragic to find that all that experience should be lost and still people should hug the exploded shibboleths and slogans. Constituent Assembly Debates Vol. V, p.224 Sardar Patel in his reply to the debate was more emphatic. He said- I had number the occasion to hear the speeches which were made in the initial stages when this question of companymunal electorates was introduced in the Congress but there are many eminent Muslims who have recorded their views that the greatest evil in this companyntry which has been brought to pass is the companymunal electorate. The introduction of the system of companymunal electorates is a poison which has entered into the body politic of our companyntry. Many Englishmen who were responsible for this also admitted that. But today, after agreeing to the separation of the companyntry as a result of this companymunal electorate, I never thought that proposition was going to be moved seriously, and even if it was moved seriously, that it would be taken seriously. Constituent Assembly Debates Vol. V, p. 255 The Constituent Assembly rejected the move and approved the recommendation of the Advisory Committee. But in the original Draft Constitution there was numberexpress provision to the effect that elections to the Parliament and to the State Legislatures shall be on the basis of the joint electorates for the reason that electoral details had been left to auxiliary legislation under Articles 290 and 291 of the Draft Constitution. Subsequently it was felt that provision regarding joint electorates is of such fundamental importance that it ought to be mentioned expressly in the Constitution itself. Article 289-A was, therefore, inserted to provide that all elections to either House of Parliament or the Legislature of any State shall be on the basis of the joint electorates. Shiva Rao Framing of Indias Constitution, Select Documents, Vol. IV p. 141. Article 289-A, as proposed by the Drafting Committee, was substituted during the companyrse of debate in the Constituent Assembly and the said provision, as finally 1023 adopted by the Constituent Assembly was numbered as Article 325. This would show that. Article 325 is of crucial significance for maintaining the secular character of the Constitution. Any companytravention of the said provision cannot but have an adverse impact on the secular character of the Republic which is one of the basic features of the Constitution. The same is true with regard to the provisions of clause 1 of Article 15 which prohibits reservation of seats in the legislatures on the ground only of religion. It is numberdoubt true that the impugned provisions, relate to only one seat out of 32 seats in the Legislative Assembly of Sikkim. But the potentialities of mischief resulting from such provisions cannot be minimised. The existence of such provisions is bound to give rise to similar demands by followers of other religions and revival of the demand for reservation of seats on religious grounds and for separate electorates which was emphatically rejected by the Constituent Assembly. It is a poison which, if number eradicated from the system at the earliest, is bound to eat into the vitals of the nation. It is, therefore, imperative that such provision should number find place in the statute book so that further mischief is prevented and the secular character of the Republic is protected and preserved. While dealing with fundamental liberties, Bose J., in Kedar Nath Bajoria v. The State of West Bengal, 1954 5 SCR 30, has struck a numbere of caution If we wish of retain the fundamental liberties which we have so eloquently proclaimed in our Constitution and remain a free and independment people walking in the democratic way of life, we must be swift to scotch at the outset tendencies which may easily widen, as precedent is added to precedent, into that which in the end will be the negation of freedom and equality. p.52 Similar caution is called for to preserve the secular character of the Republic. Having found that the impugned provision providing for a separate electoral roll for Sangha Constituency companytraveness Article 325 and reservation of one seat for Sanghas companytravenes Article 15 1 and Articles 325 and 15 1 are of crucial importance to the companycept of Secularism envisaged 1024 in the Constitution it becomes necessary to examine whether Article 371-F permits a departure from the principle companytained in Articles 325 and 15 1 while applying the Constitution to the newly admitted State of Sikkim. I am unable to companystrue the provisions of Cl f of Article 371-F-as companyferring such a power clause f of Article 371-F which empowers Parliament to make provision for reservation of seats in the Legislative Assembly of Sikkim for protecting the rights and interest of the different sections of the population of Sikkim, must be companysidered in the companytext of clause 5 of the tripartite agreement of May 8, 1973. The different sections companytemplated in clause f of Article 371-F are Sikkimese of Bhutia-Lepcha origin on the one hand and Sikkimese of Nepali origin on the other and the said provision is intended to protect and safeguard the. rights and interests of these sections. Clause f of Article 371-F, in my view, cannot be companystrued to permit reservation of a seat for Sanghas and election to that seat on the basis of a separate electoral roll companyposed of Sanghas only. It must, therefore, be held that clause c of sub-s. 1-A of s.7 and Section 25-A of the 1950 Act and the words other than companystituency reserved for Sanghas in clause a of sub-s. 2 of s.5-A and clause c of sub-s. 2 of s.5-A of the 1951 Act are violative of the provisions of Articles 15 1 and 325 of the Constitution and are number saved by Article 371-F of the Constitution. The said provisions, in my view, are however, severable from the other provisions which have been inserted in the 1950 Act and the 1951 Act by the 1976 Act and the 1980 Act and the striking down of the impugned provisions does number stand in the way of giving effect to the other provisions. I would, therefore, strike down s.25-A inserted in the 1950 Act by the Act 10 of 1976 and the provisions companytained in clause c of sub-s. 1-A which has been inserted in Section 7 of the 1950 Act by Act 8 of 1.980, the words other than the companystituency reserved for the Sanghas in clause a of sub-s. 2 as well as clause c of sub-s. 2 inserted in Section 5-A of the 1951 Act by Act 8 of 1980 as being unconstitutional. In Transferred Cases Nos. 93 and 94 of 1991, Shri K.N. Bhatt and Shri K.M.K. Nair, the learned companynsel appearing for the petitioners therein have number assailed the validity of the provisions with regard to reservation of seats for Sikkimese of Bhutia and Lepcha origin. They have. however, 1025 urged that Clause f of Article 371-F imposes an obligation on Parliament to make provision for protection of the rights and interests of Sikkimese of Nepali origin also and that while making reservation for protection of rights and interest of Sikkimese of Bhutia-Lepcha origin, Parliament was also required to provide for similar reservation of seats for Sikkimese of Nepali origin to protect the rights and interests of Sikkimese of Napalis origin. In this regard, it has been submitted that reservation for seats in the Sikkim Council and subsequently in Sikkim Assembly for Sikkimese of Nepali origin had been there since the elective element was introduced in 1952. It was also urged that after Sikkim was admitted in the Indian Union, there has been large influx of outsiders in Sikkim as a result of which the original residents of Sikkim including Sikkimese of Nepali origin have been vastly out numbered by settlers companying to Sikkim from other parts of the companyntry. In my view, there is numbersubstance in these companytentions. According to the figures of 1971 census Sikkimese of Nepali origin were 1,40,000 whereas Sikkimese of Bhutia-Lepcha origin were 51,600 and as per per the figures of 1981 census the companyresponding figures were 2,24,481 and 73,623 respectively. This shows that the ratio of Sikkimese of Nepali origin and Sikkimese of Bhutia-Lepcha origin is about 31. In view of the vast difference in their numbers the Sikkimese of Nepali origin can have numberapprehension about their rights and interests being jeopardised on account of reservation of twelve seats for Sikkimese of Bhutia-Lepcha origin in the Legislative Assembly companyposed of thirty-two seats. As regards the apprehension that the Sikkimese of Nepali origin would be out-numbered by the settlors from other parts of the companyntry I find that numbermaterial has been placed by the petitioners to show that the number of settlors from other parts of the companyntry into Sikkim is so large that Sikkimese of Nepali origin are being out-numbered. The figures of the 1971 and 1981 census, on the other hand, indicate to the companytrary. According to the 1.971 census in the total population of 2,09,843 the Sikkimese of Nepali origin were about 1,40,000, i.e., about 67, and according to the 1981. census in the total population of 3.16,385 Sikkimese of Nepali origin were 2,24,481, i.e., about 70. In these circumstances, it cannot be said that reservation of seat for Sikkimese of Nepali origin was required in order to protect their- rights and interests and in number making any provision for reservation of seats for Sikkimese of Nepali origin Parliament has failed to give effect to the provisions of clause Article 371-F of the Constitution. 1026 For the reasons above mentioned, these cases have to be partly allowed and it is declared that Section 25-A introduced in the 1950 Act by Act number 10 of 1976, Clause c of sub-s. 1A introduced in Section 7 of the 1950 Act by Act number

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 714-16 of 1993. From the Judgment and Order dated 14.9.92 of the Allahabad High Court in Civil Misc. W.P. Nos. 20731, 23861 24353 of 1991. AND Civil Appeal No. 717 of 1993. From the Judgment and Order dated 9.12.91 of the Allahabad High Court in Civil Misc. W.P.No. 11114 of 1990. V. Sehgal, Ravi Kiran Jain, Sunil Gupta, Jamshed Bey, H.K. Puri, Mrs. Rani Chhabra and R.B. Misra for the Appellants. Sabir Hussain Saif, Shakeel Ahmed Syed, Bahar U. Barqi, Anis Suhrawardy and Vijay Hansaria for the Respondents. The Judgment of the Court was delivered by KASLIWAL, J. Special leave granted. As companymon questions of fact and law are involved in all the above cases, as such they are disposed of by one single order. First proviso to Section 9 of the United Provinces Municipalities Act, 1916 hereinafter referred to as the Act provided for numberination of only one woman as a member of the Municipal Board by the State Government. Further, there was numberprovision permitting the State Government to cancel the numberination of such member at its pleasure. One Smt. Sarla Devi was numberinated by the State Government as the sole Woman member for the Shahjahanpur Municipal Board hereinafter referred to as the Board in January, 1989. By U.P. Ordinance No. 2 of 1990 later on succeeded by Ordinance No. 8 of 1990 and eventually replaced by U.P. Act No. 19 of 1990, the aforesaid first proviso to Section 9 of the Act was substituted by another proviso which made provision for the numberination of two women members by the State Government. Further, a fourth proviso was also added to Section 9 of the Act which provided that the numberination of the aforesaid two members was at the pleasure of the State Government. The aforesaid Ordinance No. 2 of 1990 was promulgated on 15.2.1990. Soon thereafter on 19.2.1990, a general numberification was issued by the State Government cancelling of numberinations of Women members in several Municipal Boards in Uttar Pradesh. The numberination of Smt. Sarla Devi also stood cancelled. On 19.4.1990, the State Government numberinated Smt. Abida and Hazra Khatoon as members of the Board under the newly introduced fourth proviso to Section 9 of the Act. The total strength of the Board was 37 including two numberinated women members. On 22.7.1991 Mohd. Iqbal was the President of the Board and Shri Om Narain Agarwal was the Vice- President of the Board. Some members of the Board on 22.7.1991initiated numberconfidence motion against Mohd. Iqbal before the District Magistrate in accordance with the procedure prescribed under Section 87-A of the Act. The District Magistrate fixed 12.8.1991 for companysideration of the numberconfidence motion. In the meantime, the State Government on 2.8.1991 in exercise of its powers under the fourth proviso to Section 9 of the Act issued numberification cancelling the numberinations of Smt. Abida and Hazra Khatoon and in their place numberinated Smt. Shyama Devi and Smt. Baijanti Devi as the two women members of the Board. On 9.8.1991 Mohd. Iqbal filed a Writ Petition No. 20731 of 1991 in the High Court challenging the companystitutional validity of the fourth proviso to Section 9 of the Act as well as the numberification dated 2.8.1991 whereby the numberina- tions of Smt. Abida and Hazra Khatoon were cancelled and in their place Smt. Shyama Devi and Smt. Baijanti Devi were numberinated. Mohd. lqbal also challenged the proceedings of numberconfidence motion initiated against him. The High Court in the aforesaid Writ Petition passed an interim order stating that outcome of the numberconfidence proceedings shall be subject to the result of the Writ Petition but did number grant any stay of numberconfidence proceedings. Smt. Shyama Devi and Smt. Baijanti Devi participated in the meeting held on 12.8.1991 and so far as Smt. Abida and Hazra Khatoon are companycerned, they neither attended the said meeting number claimed any right to attend the same. In the aforesaid meeting held on 12.8.1991, 20 members of the Board voted in favour of the number companyfidence motion out of the total strength of 37 members of the Board. After the number companyfidence motion dated 12.8.1991 having been passed against Mohd. lqbal, a casual vacancy arose in the Office of the President of the Board by virtue of Section 47-A of the Act and Shri Om Narain the then Vice-President was elected as President of the Board. Om Narain took charge of the said Office and companytinued to function as President thereafter. Mohd. Iqbal then filed another Writ Petition No. 23861 of 1991 on 20th August, 1991 challenging the numberconfidence motion dated 12.8.1991 passed against him. The High Court refused to pass any stay order in favour of Mohd. Iqbal. Smt. Abida and Smt. Hazra Khatoon also filed a Writ Petition No. 24353 of 1991 on 12.9.1991 challenging the cancellation of their numberinations and numberinating Smt. Shyama Devi and Smt. Baijanti Devi in their place. A Division Bench of the Lucknow Bench of the Allahabad High Court in Writ Petition No. 1067 of 1991 Prem Kumar Balmiki State of U.P. by order dated 13.11.1991 held that the fourth proviso to Section 9 of the Act was companystitutional and valid and any numberification issued by the State Government under the said provision was also valid. Another Division Bench of the Allahabad High Court sitting at Allahabad in Writ Petition No. 11114 of 1990 Dr. Smt. Rama Mishra v. State of U.P. by order dated 9.12.1991 held that the fourth proviso to Section 9 of the Act was arbitrary, unreasonable, unconstitutional and invalid and any numberification issued thereunder cancelling the numberination of any woman member of the Board and numberinating a new member was invalid. A Division Bench of the Allahabad High Court companysidered all the three Writ Petitions, two filed by Mohd. Iqbal and one by Smt. Abida and Smt. Hazra Khatoon and by a companymon order dated 14.9.1991 recorded its agreement with the decision in Rama Mishras case and quashed the numberification dated 2.8.1991 whereby Smt. Abida and Smt. Hazra Khatoon were ousted and in their place Smt. Shyama Devi and Smt. Baijanti Devi were numberinated and also declared Mohd. Iqbal to be the President of the Board. In this judgment the High Court though followed Rama Mishras case but failed to take numberice of the decision of the Lucknow Bench of the High Court dated 13.11.1991 given in Prem Kumar Balmikis case. A review application filed by Om Narain and others was also dismissed by the High Court by order dated 21.9.1992. Aggrieved against the aforesaid decision of the High Court, Om Narain Agarwal former Vice-President, Smt. Shyama Devi and Smt. Bailjanti Devi have companye in appeal by Special Leave Petition Nos. 13621-23 of 1992. Smt. Bashiran who was a numberinated woman member in the Municipality of Varanasi and whose numberination was subsequently cancelled has filed Special Leave Petition No. 13004 of 1992 against the judgment of the Allahabad High Court dated 9.12.1991 passed in Dr. Rama Mishras case. The Division Bench of the High Court in the impugned order dated 14.9.1992 has agreed with the view taken in Dr. Rama Mishras case. After taking the aforesaid view the High Court held that the State Government had numberpower to cancel the numberinations of Smt. Abida and Smt. Hazra Khatoon and to numberinate Smt. Shyama Devi and Smt. Baijanti Devi in their place. The High Court as a result of the above finding held that the numberification dated 2.8.1991 was a nullity and that being so, the earlier numberification dated 19.4.1990 numberinating Smt. Abida and Smt. Hazra Khatoon remained operative. The High Court then companysidered the next question as to what was the effect of the numberification dated 2.8.1991 and the motion of numberconfidence passed on 12.8.1991. The High Court in this regard took the view that the total strength of the members was 37 and the motion of numberconfidence was carried out by 20 members including the two numberinated members Smt. Shyama Devi and Smt. Baijanti Devi. As numberination of these two women members was declared to be invalid, their par- ticipation and voting right shall have to be ignored and in that view of the matter, proceedings dated 12.8.1991 shall be companysidered as having been attended only by 18 eligible members and the motion cannot be deemed to have been carried by a majority of the members companysisting of at least 19 members. The High Court thus held that the provision of Section 87-A 12 of the Act being mandatory and the resolution of numberconfidence having number been passed by a requisite majority the entire proceedings held on 12.8.1991 relating to the motion of numberconfidence was number est and as such the resolution of numberconfidence passed therein was void. The High Court also repelled the companytention that till the numberination of Smt. Shyama Devi and Smt. Baijanti Devi was declared void, all acts done by them will be protected by de facto doctrine. The High Court also repelled the companytention that the numberination of Smt. Abida and Smt. Hazra Khatoon vide numberification dated 19.4.1990 should also be declared invalid on the analogy on which the numberification dated 2.8.1991 numberinating Smt. Shyama Devi and Smt. Baijanti Devi has been declared invalid. The High Court in this regard held that the numberification dated 19.4.1990 shall remain operative unless the same is challenged and declared to be void. It was also held by the High Court that in view of the interim order passed on 9.8.1991 in Writ Petition No. 20731 of 1991 to the effect that the result of numberconfidence motion shall be subject to the decision of the Writ Petition, Section 47-A 1 b of the Act cannot be invoked against the writ petitioner. The High Court after recording the above findings passed the following operative order- In the result the Writ Petition No. 20731 of 1991 is partly allowed and the numberification dated 2.8.1991 Annexure No. 3 to the Petition is quashed. The Writ Petition No. 23861 of 1991 succeeds and is allowed and the entire proceedings taken up in the meeting dated 12.8.1991 including the resolution of numberconfidence passed against the petitioner are quashed. Annexures No. 1 and 1 A to this petition are quashed. The respondents are directed number to interfere with the petitioners working as President of the Municipal Board, Shahjahanpur. The Writ Petition No. 24353 of 1991 succeeds and is allowed. Notification dated 2.8.1991 An- nexure No. 1 to this petition having been quashed, the respondents are directed to treat the petitioners as members of the Municipal Board, Shahjahanpur and permit them to act as such. No order as to companyts. Before companysidering the arguments advanced on behalf of the appellants, it would be necessary to state the relevant provisions of the Act namely, Sections 9, 47-A and 87-A of the Act. Section 9 of the Act including the amendment added from 15.2.1990 is reproduced as under- Section 9. Normal companyposition of the board.- Except as otherwise provided by Section 10, a Board shall companysist of- The President The elected members who shall number be less than 10 and number more than 40, as the State Government may by numberification in the Official Gazette specify The ex officio members companyprising all members of the House of People and the State Legislative Assembly whose companystituencies include the whole or part of the limits of the Municipality Ex-officio members companyprising all members of the Council of States and the State Legislative Council who have their residence within the limits of the Municipality. Explanation.- For the purposes of this clause, the place of residence of a member of the Council of States or the State Legislative Council shall be deemed to be the place of his residence mentioned in the numberification of his election or numberination, as the case may be Provided that if numbere of the members elected under clause b , is a woman, the State Government may by a like numberification numberinate one woman as a member of the Board and thereupon, the numbermal companyposition of the Board shall stand varied to that extent Provided that if numbere or only one of the members elected under clause b , is a woman, the State Government may, by numberification, numberinate two women members or one more woman member, as the case may be, so that the number of women members in the Board is number less than two and thereupon the numbermal companyposition of the Board shall stand varied to that extent Provided further that if any member of the State Legislative Council representing the Local Authorities Constituency does number have his residence within the limits of any Municipality, he will be deemed to be ex- officio member of the board of such one of the municipalities situated within his companystituency as he may choose Provided also that if numbere of the members elected under clause b belongs to safai mazdoor class, the State Government may, by numberification, numberinate a person belonging to the said class a member of the Board, and thereupon the numbermal companyposition of the Board shall stand varied to that extent. Explanation A person shall be deemed to belong to the Safai Mazdoor class if he belongs to such a class of scavengers by occupation or to such of the Scheduled Castes traditionally fol- lowing such occupation as may be numberified by the State Government Provided also that a member numberinated under this section, whether before or after February 15, 1990 shall hold office during the pleasure of the State Government, but number beyond the term of the Board. 47-A. Resignation of President of vote of number-confidence.- If a motion of number-confidence in the President has been passed by the board and companymunicated to the President in accordance with the provisions of Section 87-A, the President shall With three days or the receipt of such companymunication, either resign his office or represent to the State Government to supersede the board stating his reasons therefore, and b unless he resigns under clause a , cease to hold office of President on the expiry of three days after the date of receipt of such companymunication, and thereupon a casual vacancy shall be deemed to have occurred in the office of the President within the meaning of Section 44-A Provided that.if a representation has been made in accordance with clause a the board shall number elect a President until an order has been made by the State Government under sub- section 3 . 2 If a representation has been made in accordance with sub-section 1 , the State Government may after companysidering the same either supersede the board for such period, number exceeding the remainder of the term of the board, as may be specified, or reject the representation. 4 5 If the State Government supersedes the board under sub-section 3 the companysequences mentioned in Section 31 shall follow as if there had been a supersession under Section 30. 87-A. Motion of number-confidence against President. Subject to the Provisions of this section, a motion expressing number-confidence in the President shall be made only in accordance with the procedure laid down below. Written numberice of intention to make a motion of numberconfidence in its President signed by such number of members of the Board as companystitute numberless than one-half of the total number of members of the Board together with a companyy of the motion which it is proposed to make shall be delivered in person together by any two of the members signing the numberice to the District Magistrate. The District Magistrate shall then companyvene a meeting for the companysideration of the motion to be held at the office of the board, on the date and at the time appointed by him which shall number be earlier than thirty and number later than thirty-five days from the date on which the numberice under sub-section 2 was delivered to him. He shall send by registered post number less than seven clear days before the date of the meeting, a numberice of such meeting and of the date and time appointed therefor, to every member of the board at his place of residence and shall at the same time cause such numberice to be published in such manner as he may deem fit. Thereupon every member shall be deemed to have received the numberice. The District Magistrate shall arrange with the District Judge for a stipendiary civil judicial officer to preside at the meeting companyvened under this section, and numberother person shall preside thereat. If within half an hour from the time appointed for the meeting, the judicial officer is number present to preside at the meeting, the meeting shall stand adjourned to the date and the time to be appointed and numberified to the members by that officer under sub-section 5 . If the judicial officer is unable to preside at the meeting, he may, after recording his reasons adjourn the meeting to such other date and time as he may appoint, but number later than fifteen days from the date appointed for the meeting under sub- section 3 . He shall without delay companymunicate in writing to the District Magistrate the adjournment of the meeting. It shall number be necessary to send numberice of the date and the time of the adjourned meeting to the members individually, but the District Magistrate shall give numberice of the date and the time of the adjourned meeting by publication in the manner provided in sub-section 3 . Save as provided in sub-sections 4 and 5 a meeting companyvened for the purpose of companysidering a motion under this section shall number for any reason be adjourned. As soon as the meeting companyvened under this section has companymenced, the judicial officer shall read to the board the motion for the companysideration of which it has been companyvened and declare it to be open for discussion. No discussion on any motion under this section shall be adjourned. Such discussion shall automatically terminate on the expiry of three hours from the time appointed for the companymencement of the meeting, unless it is companycluded earlier. Upon the companyclusion of the debate or upon the expiry of the said period of three hours, as the case may be, the motion shall be put to the vote of the board. The judicial officer shall number speak on the merits of the motion, number shall he be entitled to vote thereon. A companyy of the minutes of the meeting together with a companyy of the motion and the result of the voting thereon shall on the termination of the meeting, be forwarded forthwith by the judicial officer to the President and the District Magistrate Provided that if the President refuses or avoids to take delivery of the companyies so forwarded, the same shall be affixed at the outer door of his last Known residence and .he shall be deemed to have received the same at the time such affixation is made. 11-A. As soon as may be after three days of the receipt of the companyies mentioned in sub- section 11 , the District Magistrate shall forward the same to the State Government, together, in the event of the motion of number- companyfidence having been carried, with a report whether or number the President has forwarded his resignation in accordance with the provisions of Sections 47 and 47-A The motion shall be deemed to have, been carried only when it has been passed by a majority of more than one-half of the total number of members of the Board. If the motion is number carried by a majority as aforesaid, or if the meeting cannot be held for want of quorum which shall number be less than two-thirds of the total number of members of the Board, for the time being, number numberice of any subsequent motion of numberconfidence in tic same President shall be received until after the expiry of a period of two years from the date of the meeting. No Notice of a motion of numberconfidence under this section shall be received within two years of the assumption of office by a President. Nothing done by any member of the board, the District Magistrate, the judicial officer or the State Government in pursuance of the provisions of this section shall be questioned in any Court. It was companytended on behalf of the appellants that the view taken in Dr. Rama Mishras case was number companyrect and the view taken by the Lucknow Bench of the Allahabad High Court in Prem Kumar Balmikis case was companyrect. It was submitted that the State Legislature was fully companypetent to insert fourth proviso and to lay down that the numberinated members shall hold office during the pleasure of the State Government. It was submitted that the pleasure doctrine also finds place in several other enactments including the Constitution of India. It was submitted that under Article 75 2 of the Constitution, Ministers of the Central Government hold office during the pleasure of the President. Similarly, under Article 164 1 , the Ministers in the States of the Indian Union hold office during the pleasure of the Governor. Similarly, under Article 76 1 , the President appoints Attorney General for India and in view of clause 4 of the said Article this office is held during the pleasure of the President. It was also submitted that Governors for the States are appointed by the President under Article 155 and under Article 156 1 ,. the Governor holds office during the pleasure of the President. It was also companytended that the Office of member of Municipal Board is a political office. It was further argued that if the initial appointment by numberination is made on political companysiderations, there appears numberreason why political companysideration should number be allowed to operate in terminating such appointments made by numberination. In these circumstances if the Legislature has itself added the fourth proviso to Section 9 of the Act authorising the State Government to allow the numberinated member to hold the Office during the pleasure of the State Government, there is numberviolation of any principle of natural justice number such provision is arbitrary so as to be violative of Article 14 of the Constitution. It was companytended that the only requirement under the second proviso to Section 9 of the Act was that if numbere or only one of the members elected under clause b is a woman, the State Government may by numberification, numberinate two women members or one more woman member as the case may be, so that the number of women members in the Board is number less than two. It was submitted that the State Government has number violated the aforesaid provision inasmuch as Smt. Shyama Devi and Smt. Baijanti Devi were numberinated in place of Smt. Abida and Smt. hazra Khatoon and the number of two women members in the Board was kept intact. Learned companynsel for the private respondents submitted that once the power of numberinating the women members is exercised by the State Government, such numberinated members cannot be removed prior to the companypletion of the term of the Board unless they are removed on the grounds companytained under Section 40 of the Act. It was also companytended that the State Government cannot be allowed to remove a numberinated member at its pleasure without assigning any reason and without affording any opportunity to show cause. Once a woman member is numberinated she gets a vested right to hold the office of a member of the Board and the State Government cannot be given an uncanalised, uncontrolled and arbitrary power to remove such member. It is companytended that such arbitrary and naked power without any guidelines would be companytrary to the well established principles of democracy and public policy. It would hamper the local bodies to act independently without any hindrance from the side of the Government. Section 10-A of the Act prescribes the term of the Board which is five years. Section 38 prescribes the term of office of members elected or numberinated to fill casual vacancies and reads as under- The term of office of a member elected to fill a casual vacancy or a vacancy remaining unfilled at the general election shall begin upon the declaration of his election under the Act and shall be the remainder of the term of the Board. Section 39 deals with resignation by a member of the Board. Section 40 provides the grounds for removal of a member of the Board. Sub-section 5 of Section 40 deals with suspension of a member. From a perusal of the above provisions it is clear that the term of an elected or numberinated member is company-terminous with the term of the Board. The numbermal term of the Board is five years, but it may be curtailed as well as extended. If the term of the Board is curtailed by dissolution or supersession, the term of the member also gets curtailed. Similarly, if the term of the Board is extended, the term of the member is also extended. Apart from the curtailment of the term of a member of the Board by dissolution of supersession of the Board itself, the term of a member also gets curtailed by his resignation or by his removal from office. Section 40 specifically provides the grounds under which the State Government in the case of a city, or the prescribed authority in any other case, may remove a member of the Board. The removal under Saction 40 applies to elected as well as numberinated members. In respect of a numberinated member, power of curtailment of term has number been given to the State Government under the fourth proviso to Section 9 added after the third proviso through the amending Act of 1990. In the cases before us, we are companycerned with the removal of numberinated members under the fourth proviso to Section 9 of the Act and we are number companycerned with the removal as companytained in Section 40 of the Act. The right to seek an election or to be elected or numberinated to a statutory body, depends and arises under a statute, The initial numberination of the two women members itself depended on the pleasure and subjective satisfaction of the State Government. If such appointments made initially by numberination are based on political companysiderations, there can be numberviolation of any provision of the Constitution in case the Legislature authorised the State Government to terminate such appointment at its pleasure and to numberinate new members in their place. The numberinated members do number have the will or authority of any residents of the Municipal Board behind them as may be present in the case of an elected member. In case of an elected member, the legislature has provided the grounds in Section 40 of the Act under which the members companyld be removed. But so far as the numberinated members are companycerned, the Legislature in its wisdom has provided that they shall hold office during the pleasure of the Govern- ment. It has number been argued from the side of the respondents that the Legislature had numbersuch power to legislate the fourth proviso. The attack is based on Articles 14 and 15 of the Constitution. In our view, such provision neither offends any Article of the Constitution number the same is against any public policy or democratic numberms enshrined in the Constitution. There is also numberquestion of any violation of principles of natural justice in number affording any opportunity to the numberinated members before their removal number the removal under the pleasure doctrine companytained in the fourth proviso to Section 9 of the Act puts any stigma on the performance or character of the numberinated members. It is done purely on political companysiderations. In Dr. Rama Mishras case, the High Court wrongly held that the pleasure doctrine incorporated under the fourth proviso to Section 9 of the Act was violative of the fundamental right of equality as enshrined in Article 14 and Article 15 3 of the Constitution. We are unable to agree with the aforesaid reasoning of the High Court. Clause 3 of Article 15 is itself an exception to Article 14 and clauses 1 and 2 of Article 15 of the Constitution. Under Article 14, a duty is enjoined on the State number to deny any person equality before the law or the equal protection of the laws within the territory of India. Article 15 1 provides that the State shall number discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Article 15 2 provides that numbercitizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them .be subject to any disability, liability, restriction or companydition with regard to a access to shops, public restaurants, hotels and places of public entertainments or b the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. Thereafter Article 15 3 provides that numberhing in this Article shall prevent the State from making any special provision for women and children. This means that in case any special provision is made for women, the same would number be violative on the ground of sex which is prohibited under clauses 1 and 2 of Article 15 of the Constitution. Thus, the special provision companytained for numberinating one or two women members as the case may be provided in Section 9 of the Act would be protected from challenge under clause 3 of Article 15 of the Constitution. It may also be worthwhile to numbere that the provision of pleasure doctrine incorporated by adding proviso four does number, in any manner, take away the right of representation of women members in the Board, but it only permits the State Government to keep the numberinated women members of its own choice. The High Court in Dr. Rama Mishras case took a wrong view in holding that the fourth proviso to Section 9 of the Act was violative of Article 15 3 of the Constitution under an erroneous impression that this provision in any manner curtailed the representation of women members in the Board. We are number impressed with the reasoning given by the High Court that the fourth proviso to Section 9 of the Act in any manner deprived the fundamental right of equality as enshrined in Article 14 of the Constitution. It is well established that the right of equality enshrined under Article 14 of the Constitution applies to equals and number to enequals. The numberinated members of the Board fall in a different class and cannot claim equality with the elected members. We are also number impressed with the argument that there would be a companystant fear of removal at the will of the State Government and is bound to demoralise the numberinated members in the discharge of their duties as a member in the Board. We do number find any justification for drawing such an inference, inasmuch as, such companytingency usually arises only with the change of ruling party in the Government. Even in the case of highest functionaries in the Government like the Governors, the Ministers, the Attorney General and the Advocate General discharge their duties efficiently, though removable at the pleasure of the companypetent authority under the law, and it cannot be said that they are bound to demoralise or remain under a companystant fear of removal and as such do number discharge their functions in a proper manner during the period they remain in the office. Thus, in the circumstances mentioned above, we are clearly of the view that the decision in Dr. Rama Mishras case does number lay down. the .correct law and is overruled and the view taken by the High Court in Prem Kumar Balmikis case supra is held to be companyrect. We do number companysider it necessary to dwell upon other arguments made before us or made and dealt with by the High Court, as the above appeals can be disposed of on the point already dealt and decided by us. Thus, as a result of the view taken by us, we hold that Smt. Shyama Devi and Smt. Baijanti Devi, the two women. members had been rightly numberinated in place of Smt. Abida and Smt. Hazra Khatoon and were entitled to take part in the meeting held on 12.8.1991 for companysidering the motion of number companyfidence against Mohd. Iqbal, the President of Nagar Palika Shahjahanpur. Further, the motion of numberconfidence being supported by 20 members which admittedly companystituted a majority of the total strength of the members of the Board being 37, the numberconfidence motion has been rightly carried out and as a result of which Mohd. Iqbal was number entitled to companytinue as President of the Board. Similarly, Smt. Abida and Smt. Hazra Khatoon having been rightly removed as numberinated members, they are numberlonger entitled to companytinue as numberinated members of the Municipal Board, Shahjahanpur and in their place Smt. Shyama Devi and Smt. Baijanti Devi shall be entitled to companytinue as numberinated members of the Board. In the result, all the above appeals are allowed, the judgment of the High Court dated 14.9.1992 in Writ Petition Nos. 20731 of 1991, 23861 of 1991 and 24353 of 1991 and dated 9.12.1991 in Writ Petition No. 11114 of 1990 are set aside and all the aforesaid Writ Petitions stand dismissed. No order as to companyts.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 1022-24 423 of 1982. From the Judgment and Order dated 14.3.78 2.7.79 of the Madras High Court in Tax Case Nos. 228/74 215 of 1975. Uttam Reddy, Atul Sharma, A.V. Palli and Ms. Reena Agarwal for E.C. Agrawala for the Appellant. Vishwanatha, P. Parmeshwaran and Ms. A. Subhashini NP for the Respondent. The Judgment of the Court was delivered by P. JEEVAN REDDY, J. These appeals are preferred by the assesagainst the judgment of the Madras High Court answering the Income Tax reference made at the instance of the Revenue, against the assessee. The assessment years companycerned are 1967-68, 1968- 69, 1969-70 and 1.970-71. The question of law which was referred for the opinion of the High Court under Section 256 2 of the Income Tax Act is Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the royalty amounts should be assessed on cash basis for 1967-68. 1968-69 and 1969-70 assessment if the books and balance sheet of such receipts were found to be maintained on cash basis and directing fresh assessment on such basis? In the paper-book supplied by the assessee-appellant the Statement of the Case is number available number are the orders of any of the authorities supplied. We are, therefore, obliged to draw the facts from the judgment of the High Court which we presume are drawn from the Statement of the Case. As a matter of fact, the facts require to be appreciated clearly for a proper decision of the question arising herein. The assessee, Standard Triumph Motor Co. Ltd. is a number- resident companypany, having its place of business at Coventry in the United Kingdom. It entered into a companylaboration agreement with the Standard Motor Products of India Ltd. Indian Company in November, 1939 whereunder the assessee was entitled to royalty of five per cent on all sales effected by the Indian Company. This amount of five per cent less the Indian tax had to be remitted to the assessee in the Sterling currency. The assessees accounting year was the year ending 30th of September. With respect to its Indian income, it was filing its returns through the Indian Company. The companylaboration agreement between the assessee and the Indian Company expired in the year 1965. It was renewed. The renewed agreement too expired in November, 1970. For the assessment years 1967-68 year ending 30.9.1966 and 196869 year ending 30.9.1967 the assessee filed returns in which it stated that it was maintaining its accounts on mercantile basis. It did number dispute its liability to assessment. In these returns, it disclosed a royalty income of Rs. 1,600 and Rs. 4,57,311 respectively. When it came to filing of the return for the assessment year 1969-70 year ending 30.9.1968 , the assessee admitted a royalty of Rs. 9,25,257 but filed a nil return saving that it was maintaining its accounts on cash basis and number on mercantile basis, that numberpart of the royalty amount has been received by it and, therefore, numberhing is taxable. For the next assessment year 1970-71 year ending 30.9.1.969 as well, it took the same stand. The I.T.O. companypleted the assessment for the first two assessment years on the basis of the returns. For the assessment years 1969-70 and 1970- 71, however, he refused to accept the assessees plea that it was maintaining its accounts on cash basis. He held that it was maintaining its accounts on mercantile basis alone and accordingly brought to tax the royalty amount disclosed. The assessee filed appeals against the assessments relating to all the four years. In these appeals, it took the stand that even with respect to the accounting years relevant to the assessment years 1967-68 and 1968-69, it has been maintaining accounts on cash basis and since it did rot actually receive any income in all these four years, numbertax is payable by it. Its case was that there was numberactual payment of the royalty by the Indian Company. It stated that though the Indian Company had credited to the assessee in its account books for the relevant years accounting year for the Indian Company is stated to be the calendar year , the assessee did number actually receive the amount number did it take credit for the said amounts in its Books at Coventry. The Appellate Assistant Commissioner dismissed the appeals holding that the assessment orders for the past years relating to the assessee reveal that the method of accounting was mercantile, that for the A.Y. 1967-68, the assessee did never companytest its liability to be taxed on the amounts disclosed and further that it was number open to it to change the method of accounting to suit its companyvenience, without the approval of the Income Tax Officer. The assessee carried the matter in further appeals to the Tribunal.It was companytended by the assessee before the Tribunal that it was number following any particular method of accounting regularly in the past years, that it was the Indian Company which was finally filing the returns of income on behalf of the assessee by incorporating the figures as per its profit and loss account, that the Indian Company was number aware of the assessees system of accounting in regard to royalty and that, therefore, it had companymitted a mistake in filing the returns for the assessment years 1967-68 and 1968-69. The assessee submitted that as soon as it numbericed that said mistake it companyrected the same and filed the return for the assessment year 1969-70 on companyrect basis, showing that the method of accounting was cash receipt basis. The appeals were allowed by the Tribunal. The Tribunal held that the assessee had number been following any particular method of accounting regularly over the past years. For example, it said, for the assessment year 1963-64 it did number say anything regarding the method of accounting. For the assessment year 1.964-65, it said it was on cash basis. For the assessment years 1967-68 and 1968-69 it stated it was maintaining accounts on mercantile basis and again for the two subsequent years it stated as cash basis. The Tribunal was, therefore, of the opinion that the question of method of accounting adopted by the assessee must be examined afresh and for that purpose allowed the appeals and remanded the matters to the Income Tax Officer. The Tribunal gave liberty to the parties to adduce additional evidence in that behalf. It directed further that if it is found that the assessee was maintaining its accounts and balance sheets on cash basis in respect of the royalty it should be assessed on cash basis. On a Reference made at the instance of Revenue, the High Court answered the question in the negative, i.e., in favour of the revenue and against the assessee. It would be appropriate at this stage to numberice the companytentions urged by the assessee and how they were met by the High Court. Though the High Court has number set out the arguments of the assessee as such, the arguments advanced can easily be gleaned from the judgment. The assessee reiterated his companytention that though the Indian Company made a credit entry in the account of the assessee in its Books, it did number actually receive the amount. The argument appears to be that the assessee can be said to have received the royalty amount only when it receives the same in U.K. in the shape of pounds and makes an entry to that effect in its own Books at Coventry. Since it is maintaining its accounts, with respect to the said royalty on cash basis, it argued, receipt means receipt in U.K. Section 145 was relied upon by the assessee to say that the method of accounting regularly adopted by an assessee is binding upon the department on that basis it was argued that if the assessee is proved to have maintained its accounts with respect to royalty amount on cash basis, then there is numberreceipt until it is received by it in U.K. It is this argument which led the High Court to say that acceptance of the said argument would mean escapement of income from taxation in India altogether. This is what the High Court said If the companytention of the assessee that the royalty should be assessed to income-tax only on its actual receipt under Section 5 2 a of the Act on the ground that it maintains its accounts on cash basis is accepted, the income companyld number be taxed at all as it would be received in England and number in India. The assessee-company, a number-resident, receiving its income outside India companyld be assessed to tax only under Section 5 2 b of the Act on accrual basis. Section 5 2 a cannot be made applicable to such an assessee. In the case of a number-resident, to whom income accrues in India, Section 5 2 a will have numberapplication. unless the number-resident receives income in India. On the facts of this case it is clear that eventuality will never arise in regard to the income with which were are companycerned, because that income will have to be remitted to the numberresident by obtaining an irre-vocable letter of credit and will thus be received only outside India. Pursuing the said reasoning the High Court held further So it is clear that there can be cases of number-residents to whom section 5 2 a will never apply in regard to a particular income. The question then is, whether in such circumstances the assessee companycerned number- resident to whom income had accrued in India can insist it, since has kept his accounts in regard to that income on the cash basis, he is number liable to be taxed on the accrual basis. In other words, the question is Sec 145 1 can be applied in such circumstances. The effect of applying the section would be to take the income outside the purview of taxation though the charge to tax on that income had taken effect on the accrual basis. Further, numberoccasion for imposing tax on receipt outside India would arise in the case of a number-resident, because Section 5 2 a will apply only to receipt in India. In such circumstances, to apply Section 145 1 would be to defeat the charge under Section 4 and to obliterate the provisions of section 5 2 h and let the income which is taxable escape Such a result is number certainly intended by the statute. Section 145 1 is only an enabling provision to effectuate the charge. The section cannot be used for destroying the charge to tax and the provisions of Sec. 5 2 b , though by merely looking at the wording of Section 145 1 it may appear that in all cases the method of accounting must be followed, unless in any case where the accounts are companyrect, but the method is such that, in the opinion of the Income-Tax Officer, the income cannot properly be deduced therefrom. But it must be remembered that Sec. 145 is only a machinery provision and cannot qualify the charging section so as to make the latter otioss. So Section 145 1 should number be permitted to be applied in such circumstances as those while arise from the facts of this case. it is therefore immaterial whether the assessee is keeping his accounts in regard to a particular income regularly on the cash basis. Even if the assessee is keeping his accounts on the cash basis in regard to his income, the assessee is liable to tax under Sec. 5 2 b . To hold otherwise would be to take the income outside the purview of taxation under the Act, though such income had accrued in India to a numberresident and under Sec. 5 2 b the charge to tax had taken effect and there is numberpossibility of Sec. 5 2 b ever companying into operation. We cannot give to Sec. 145 1 such an overriding effect as to defeat the charge and the provisions of Section 5 2 b . In this companyrt, the learned companynsel for the assessee companytended that so far as the royalty income is companycerned, the assessee was maintaining its accounts at Coventry in the United Kingdom on receipt basis. Its accounting years was the year ending on 30th of September of each year whereas the accounting year of the Indian Company was the calendar year. Notwithstanding the stipulation in the companylaboration agreement for half-yearly remittances, the practice was that the Indian Company was determining the amount of royalty at the end of its accounting year. This amount was credited to the account of the assessee in the account books of the Indian Company, but mere crediting to the account of the assessee in the Books of the Indian Company does number amount to receipt of income by the assessee. Receipt is only when the amount is remitted to United Kingdom in accordance with the agreement. Counsel submitted that the assessee was number maintaining any particular method of accounting regularly in respect of the said royalty amount and that the alleged statement in the returns relating to the assessment years 1967-68 and 1968- 69 to the effect that it was maintaining its accounts on mercantile basis, was an incorrect statement made by the Indian Company which was number aware of the true state of affairs relating to the assessees accounts. The learned companynsel submitted that all that the Tribunal has done is to direct an inquiry to find out the true state of affairs viz., whether the assessee was maintaining its accounts on mercantile basis or on cash receipt basis in so far as the royalty amount is companycerned. He submitted further that since the Appellate Assistant Commissioner exercises all the powers of the assessing authority, it was perfectly open to the assessee to raise the companytention relating to the method of accounting even with respect to the assessment years 1967-68 and 1968-69, in the appeals. When the assessee has number actually received any royalty income from the Indian Company, it is number expected to bring money from the United Kingdom for paying its taxes in India, the learned companynsel companytended. The companylaboration agreement between the assessee and the Indian Company is as old as 1939. According to its own case, the assessee has been filing its income-tax returns in India through the Indian Company. It is true that the agreement companytemplated royalty amount being remitted in Sterling currency to U.K., but it cannot be said that until it is so remitted to and received in the U.K., the assessee has number received the income. The practice evidently was that the Indian Company was maintaining an account pertaining to the assessee in its Books. After it made up its accounts at the end of the calendar year and determined the royalty amount payable to the assessee, the the Indian Company was crediting the said amount to the account of the assessee in its Books. This was treated as income by the assessee over all these years. The returns filed by the assessee even with respect to assessment years 1967-68 and 1968-69 were based upon the said premise. In the said returns, the assessee declared a particular amount of income and offered the same for taxation. It did number take the stand that the said credit entry in the Books of the Indian Company does number give rise to income in India number did it ever say that the receipt in U.K. in the shape of Sterling pounds alone companystitutes income or for that matter receipt of income. It may also be numbericed that in its returns relating to the assessment years 1967-68 and 1968-69, the assessee stated that it was maintaining its accounts on mercantile basis. Only in the returns relating to the assessment year 1968-69, did it raise the plea that it was maintaining its books, with respect to the said royalty amount, on cash receipt basis. The Tribunal appears to have stated that for the year 1964-65 too, the assessee had stated ,cash basis but it is number clear for what purpose the said plea was raised. One thing is clear the assessee did number say at any time earlier to A.Y. 1968-69 that receipt of money in U.K. alone is receipt by it . It also took the rather strange plea that the Indian Company was number aware of the method of accounting adopted by the assessee and, therefore, it made the aforesaid incorrect statement in the returns relating to the years 1966-67 and 1967-68. This plea, the Appellant Assistant Commissioner refused to companyntenance. It is significant to numberice that the assessee did number say that the method of accounting adopted by it for all its income was on cash basis. It companyfined the said plea to its Indian income alone. The said plea, it should be numbericed, had numbersignificance by itself. Its significance lies when we examine the said plea in the fight of the further companytention of the assessee that it did number actually receive the amount from the Indian Company. We put a pointed question to the learned companynsel for the assessee whether it was the assessees case at any stage that the credit entry made in the account books of the Indian Company in favour of the assessee was a bogus or a mere make-believe entry. The companynsel replied that it was number its case at any point of time. His companytention was that the mere entry in the account books of the Indian Company does number amount to receipt of income by the assessee. The assessee had been very careful number to say that the Indian Company did number place the said amount at the disposal of the assessee. Indeed, he replied to a further question by us that even if the said amount were put by the Indian Company in a Bank to the credit of the assessee, it companyld number have been said that the assessee has received the amount. In other words, according to the learned companynsel, the said royalty income can be said to have been received by the assessee only when it received the same in U.K. It is this extreme argument which led the High Court to make the observations quoted hereinbefore. It would immediately be evident that this was number the basis put forward by the assessee at any point of time till it to the filing of return for the assessment year 1969-70. We are number suggesting that it is estopped from doing so. We are only saying that the said plea was number and is number acceptable. The receipt of the said income in the K., in our opinion, is immaterial. It may happen that a number-resident assessee may choose number to repatriate his income profits to his parent companyntry he may choose to plough back the said amount in India for such purposes as he may choose. It cannot be said in such a situation that he has number received the income in India. In Raghava Reddi v. CL T., Andhra Pradesh, 44 I.T.R. 720 the number-resident companypany instructed the assessee, in view of the difficulties in this companyntry in remitting the monies abroad, to credit the amount due to it on account of companymission in the account Books of the assessee awaiting further instructions regarding its remittance. The assessee was assessed as the statutory agent of the number-resident companypany. The I.T.O. assessed the amounts credited in the accounts of the assessee as the income of the number-resident companypany. The companytention of the assessee was that mere entry in the Books of the assessee cannot amount to receipt and that the amounts cannot be assessed until they were actually paid over to the number-resident companypany or dealt with according to its directions. Rejecting the companytention, it was held by this companyrt that as soon as the monies were credited to the account of the number-resident Japanese company- pany, it must be held that it received the same and are taxable. Hidayatullah, J. speaking for the Constitution Bench observed This leaves over the question which was earnestly argued, namely, whether the amounts in the two account years can be said to be received by the Japanese companypany in the taxable territories. The argument is that the money was number actually received, but the assessee firm was a debtor in respect of that amount and unless the entry can be deemed to be a payment or receipt, clause a cannot apply. We need number companysider the fiction, for it is number necessary to go to the fiction at all. The agreement, from which we have quoted the relevant term, provided that the Japanese companypany desired that the assessee firm should open an account in the name of the Japanese companypany in their books of account, credit the amounts in that account, and deal with those amounts according to the instructions of the Japanese companypany. Till the money was so credited, there might be a relation of debtor and creditor but after the amounts were credited, the money was held by the assessee firm as a depositee. The money then belonged to the japanese companypany and was held for and on behalf of the companypany and was at its disposal. The character of the money changed from a debt to a deposit in much the same way as if it was credited in bank to the account of the companypany. Thus, the amount must be held, on the terms of the agreement, to have been received by the Japanese companypany, and this attracts the application of section 4 1 a . Indeed, the Japanese companypany did dispose of a part of amounts by instructing the assessee firm that they be applied in a particular way. In our opinion, the High Court was right in answering the question against the assessee. Applying the above principle, it must be held in this case that the credit entry to the account of the assessee in the Books of the Indian Company does amount to its receipt by assessee and is accordingly taxable and that it is immaterial when did it actually receive it in U.K. In this view of the matter, it must be held that in the circumstances of the case. the method of accounting adopted by the assessee for the relevant accounting years is really irrelevant. As explained hereinbefore, the very companycept of receipt as espoused by the assessee is untenable and unacceptable. The order of remand made by the Tribunal was thus unnecessary. In the circumstances, we do number think it necessary to express any opinion on the question whether there is any companyflict or inconsistency between Section 5 2 and Section 145 of the Act number is it necessary to express ourselves on the view expressed by the High Court that in the case of a number-resident assessee like the petitioner clause a of sub-section 2 of Section 5 has numberapplication whatsoever and that Section 5 2 b governs it irrespective of the fact whether it maintains its accounts on cash basis or mercantile basis. The question referred did number really arise in the facts and circumstances of the case and need number have been answered. The Tribunal shall companyplete the assessments in question in the light of this judgment. In view of the above, it is unnecessary for us to deal with the decisions cited by the learned companynsel for the assessee. The first decision cited by him is in C.I.T v. Macnzillan Co., 33 I.T.R. 182 regarding the powers of the Appellate Authority. The second decision is in Keshav Mills Ltd. v. CL T., Bombay 23 I.T.R. 230. The principle of this decision does in numberway support the principle companytended for by the appellant. The appeals accordingly fail and are dismissed. No companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 3115-16 of 1980. From the Judgment and Order dated 15.6.1978 of the Bombay High Court in I.T. Ref. No. 458 of 1976. U. Eradi and Suman J. Khaitan for Khaitan Co. for the Appellant. Rajappa for Ms. A. Subhashini for the Respondent. The Judgment of the Court was delivered by P. JEEVAN REDDY, J. Assessee is the appellant. He is aggrieved by the decision of the Bombay High Court in Income Tax Reference No. 458 of 1976 answering the following question, which was referred to it at his instance, against him whether on the facts and in the circumstances of the case the amount of tax paid by Ballarpur on behalf of the assessee in assessment years 1974-75 and 1975-76 is income tax ore under the heading other sources. The Ballarpur Paper and Straw Board Mills Limited Ballarpur is a public limited companypany engaged in the manufacture of paper and straw board. It undertook to set up a caustic soda chlorine manufacturing plant at Ballarpur.For this purpose, it entered into an agreement with Krebs, a French companycern, for purchase of certain machinery and equipment. There was a second agreement between Ballarpur and Krebs whereunder Krebs undertook to provide services of certain personnel including engineers for setting up the plant at Ballarpur. Krebs, in turn, entered into an arrangement with a Swiss companycern, Escher Wyas Eurich, for supply of certain machinery and also to make available services of certain personnel. The assessee, Emil Webler, was one such person provided by the Swiss companycern The assessee came to India and worked here in companynection with the setting up of the plant. According to the agreement between Ballarpur and Krebs the former undertook to pay salaries and other emoluments to personnel provided by Krebs in accordance with the formula companytained in the agreement. Inter alia, it was provided that salaries are understood free of any Indian tax or duty. For the assessment year 1974-75, the assessee- appellant was paid a sum of Rs. 3,82,481 and for the assessment year 1975-76, a sum of Rs. 67,200 in addition to daily allowances and other facilities. The assessee companytended before the Income Tax Officer that he was number liable to pay tax He also filed returns affirming the said stand. The stand taken by him was negatived, whereupon Ballarpur paid the tax of Rs. 3,23,400 and Rs. 35,546 for the said two assessment years respectively. In his assessment orders, the I.T.O. treated the said tax amount as a perquisite and added the same to the salary amount received by the assessee. The said addition was questioned by the assessee in appeal, before the A.A.C. but without success. The matter was then carried to the Tribunal. The Tribunal too did number agree with the assessees companytention and dismissed his appeal whereupon he obtained the aforesaid reference which, as stated above, has been answered against him by the Bombay High Court. For a proper appreciation of the question arising herein, it is necessary to numberice certain factual statements companytained in the Statement of the Case. It is stated therein according to this agreement, Ballarpur were under an obligation to pay by the device of delegation invoices opened with a bank in France certain amount of salaries at agreed rates to Krebs and Cis. Paris for setting up the plant at the town of Ballapur The Tribunal clarified that there was numberdispute between the parties that the amounts of Rs. 3,82,481 and Rs. 67,200 paid by Ballarpur through Krebs to the assessee for services rendered by it in the two respective years were taxable under the heading Salary. It further clarified that there was numberdispute between the parties, that the relationship of the employer and employee did number exist between Ballarpur and the assessee. The Tribunal held as below 1 Ballarpur was under a legal obligation to pay the tax if any, levied on the assessee 2 Ballarpur paid the tax by virtue of such a legal obligation The facts found by the Tribunal thus show that the assessee- appellant was paid certain salary free of tax but that the tax payable in that behalf was to be and was in fact paid by Ballarpur. The assessment was made upon the assessee directly. The question is whether the said tax companyponent paid by Ballarptir can be included within the income of the assessee. The first companytention of the learned companynsel for the assessee is that the amount paid by Ballarpur by way of tax cannot be treated as income of assessee at all. His second companytention is that the assessee did number receive the said amount and, therefore, it cannot companystitute his income. Indeed, the learned companynsel sought to argue that Ballarpur was under numberobligation to pay the said tax amount relating to the salary amount received by the assessee. We find it difficult to agree with the learned companynsel. The definition of income in clause 24 of Section 2 of the Act is an inclusive definition. It adds several artificial categories to the companycept of income but on that account the expression income does number lose its natural companynotation. Indeed, it is repeatedly said that it is difficult to define the expression income in precise terms. Anything which can properly be described as income is taxable under the Act unless, of companyrse, it is exempted under one or the other provision of the Act. It is from the said angle that we have to examine whether the amount paid by Ballarpur by way of tax on the salary amount received by the assessee can be treated as the income of the assessee. It cannot be overlooked that the said amount is numberhing but a tax upon the salary received by the assessee. By virtue of the obligation undertaken by Ballarpur to pay tax on the salary received by the assessee among others, it paid the said tax. The said payment is, therefore, for and on behalf of the assessee. It is number a gratuitous payment. But for the said agreement and but for the said payment, the said tax amount would have been liable to be paid by the assessee himself He companyld number have received the salary which he did but for the said payment of tax. The obligation placed upon Ballarpur by virtue of Section 195 of the Income Tax Act cannot also be ignored in this companytext. It would be unrealistic to say that the said payment had numberintegral companynection with the salary received by the assessee. We are, therefore, of the opinion that the High Court and the authorities under the Act were right in holding that the said tax amount is liable to be included in the income of the assessee during the said two assessment years. The question then arises under which head of income should the said income be placed. Inasmuch as the assessee is number an employee of Ballarpur, which made the payment, it cannot be brought within the purview of Section 17 of the Act. It must necessarily be placed under sub-section 1 of Section 56, income from other sources. According to the said sub- section, income of every kind which is number to be included from the total income under the Act shall be chargeable to income tax under the head income from other sources, if it is number chargeable to income tax under any of the other heads specified in Section 14, Items A to E. It is number the case of the assessee that any provision of the Act exempts the said income from the liability to tax The learned companynsel for the assessee-appellant relied upon certain decisions in support of his companytention. The first is the decision of this companyrt in N.A. Modi v. S.A.L. Narayana Rao, 61 ITR 428 SC. An advocate was appointed as a Judge. He received certain income after his appointment as a Judge in lieu of the professional service rendered by him before his appointment. The question was whether the said amount is taxable. It was held that it was number in view of the provisions of the Act as it then stood . The basis for the said decision is that the assessee therein cannot be said to be carrying on the profession of an advocate at the time he received the said income. We are unable to see how the said decision helps the assessee herein. Indeed, in the said decision this companyrt emphasised that the question whether an income falls under one head or the other has to be decided according to the companymon numberion of practical men, inasmuch as the Act does number provide any guidance in the matter. It was observed that the heads of income must be decided on the nature of income by applying practical companymon numberions and number by reference to the assessees treatment of income. The application of said test does number certainly help the assessee herein. The second decision cited is of the Bombay High Court in CLT. Bombay v. Smt. T.P. Sidhwa, 133 ITR 840. The question was whether the income from property received by an assessee of which he is number the owner can be taxed as income from other sources. It was held that it cannot be so taxed. We do number see any anology between the facts and principle of that case and those of this case. Here the integral companynection between the salary received by the assessee and the tax payable thereon, paid by Ballarpur in pursuance of a legal obligation, cannot be overlooked. The third case cited is in Mrs. Sheela Kaushish v. C.I.T, Delhi, 131 I.T.R. C. In this case, it was held that determination of annual value under Section 23 of the Income Tax Act, 1961 should be done by taking the standard rent as the basis even where the assessee is receiving rent higher than the standard rent. Again we must say, we see numberrelevance of the said principle of this case to the facts of this case. For the above reasons, the appeals fail and are dismissed. No companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 3715 NL of 1-984. From the judgment and Order dated 1.9.1982 of the Bombay High Court in Appeal No. 247 of 1977 in Misc. Petition No. 627 of 1977. J. Francis, V. Subramanian and P. Padma Kumar for the Appel- 1053 lant. B. Pai, P. Ramaswami and H.S. Parihar for the Respondents. The Judgment of the Court was delivered by P. JEEVAN REDDY, J. This appeal is preferred by the Labour Union, Sarva Shramik Sangh, Bombay against the judgment of the Division Bench of Bombay High Court allowing Writ Appeal No. 247 of 1977. The appeal was preferred by the respondent-employer. The Indian Hume Pipe Company Limited, against the Judgment of a learned Single Judge dismissing the Writ Petition preferred by it Management against the Award of the Industrial Tribunal, Bombay. The main question arising for decision in this appeal pertains to the power of the Industrial Tribunal to award relief with effect from a date anterior to the date of raising the dispute by the Labour Union. On 2.11.65 the appellant-Union submitted a demand for payment of dearness allowance to the daily-rated workmen employed at the respondents Wadala Factory at the same rate as is paid to the monthly-rated employees, with effect from 1.1.1964. On 15.11.1965 these demands were placed before the Conciliation Officer and thereafter before the Conciliation Board. On 15.3.1967 the Conciliation Board submitted its failure report. It appears that the recommendations of the Central Wage Board were awaited at that time and the companypany agreed to implement the final recommendations of the said Board as accepted by the Central Government. On 26.4.1968 the appellant-Union submitted a memorandum before the Government reiterating the said demand. They claimed the said benefit with effect from 15.11.1965. On 5.7.1968 the Government referred the said dispute to the Industrial Tribunal. In November, 1968 the respondent-company filed a Writ Petition in the Bombay High Court challenging the validity of the order of reference. On 27.2.1973 the High Court disposed of the Writ Petition in the following terms By companysent the order Exhibit-C dated 5.7.1968 is set aside without prejudice to the rights of the respondents to refer fresh dispute in respect of the same demands according to law. On 19.3.1973 the appellant submitted a demand to the management claiming the very same relief with effect from 15.11.1965. On the basis of the said demand, the Government made a reference to the Industrial 1054 Tribunal, Bombay, on 26.3.1973. The dispute referred reads as follows All the daily rated workman from Wadala factory of the companypany should be paid dearness allowance at the same scale that is given to monthly rated staff of the factory with retrospective effect from 15th November 1965 i.e. at the rate given below. Slab Salary D.A. index 311 Variation for to 320 10 points Up to Rs. 100 65 of basic salary or revised textile scalefor-- 5 all days of month whi- chever is higher. Rs. 101 to 200 30 2 Rs. 201 to 300 15 1 Rs. 310 and above 10 1 On 3.1.1977 the Tribunal made its award. It directed that all the daily-rated workmen from Wadala Factory of the Company should be paid dearness allowance at the rate of 15 of the revised textile rate with effect from 1st January, 1968. The Company is further directed to pay all the arrears to these workmen within two months from the date of the publication of the award. Award accordingly. No order as to companyts. The Management questioned the validity of the said award by way of a writ petition in the Bombay High Court Miscellaneous Petition No. 627 of 1977 . On 15.6.1977 a learned Single Judge dismissed the Writ Petition holding that the error if any, in the award of the Tribunal is number an error of jurisdiction calling for interference under Article 226 of the Constitution. The respondent companypany preferred an appeal which was disposed of by the Division Beneh under its Judgment and Order dated 1.9.1992, impugned herein. The Division Bench affirmed the award except with respect to the date from which the relief was granted by the Tribunal. The Division Bench was of the opinion that the Tribunal had numberjurisdiction to award relief to the workmen with effect from a date prior to the date on which the dispute was raised. Inasmuch as the dispute which was referred by the Government to the Industrial Tribunal and which resulted in the award in question was raised on 19.3.1973, the Division Bench held that the relief can be granted only from 19.3.73 but number from an anterior 1055 date. The Division Bench was of the opinion that this restriction on the power of the Industrial Tribunal flows from the decisions of this Court, to which we shall refer presently. The companyrectness of the said view is questioned in this appeal. Mr. V.J. Francis, the learned companynsel for the appellant- Union submitted that inasmuch as the appellant-Union had been agitating for grant of D.A. to the daily-rated workmen at Wadala Factory at the same rate at which it is paid to monthly-rated workmen, right from November, 1965, the Tribunal was justified in awarding the relief from 1.4.1968. The restriction perceived by the Division Bench is neither sanctioned by law number does it flow from the decisions referred to by the Division Bench. On the other hand, Shri B.Pai, the learned companynsel for the respondent-company sup- ported the reasoning and companyclusion of the Division Bench. Learned companynsel submitted that an industrial dispute arises only when the workmen raise a particular dispute before the Management. No Industrial dispute can be said to arise when a dispute is raised by workmen number before the Management but before the. Government. The learned companynsel companytended on the above basis that the so-called dispute which was referred by the Government on the earlier occasion on 15.7.1968 was number an industrial dispute, inasmuch as the basis of the said reference, namely the demand of workmen dated 26.4.1968, was never submitted before the Management, it was submitted directly to the Government and Government alone. The said reference was, therefore, questioned by the Management in the Bombay High Court and it was agreed by both the parties before the High Court that the order of reference be set aside and the Union be left free to raise a fresh dispute. Accordingly the Union raised a fresh dispute on 19.3.1973. No doubt this demand was for payment of the said D.A. with effect from 15.11.1965, even so the Tribunals power is limited to grant of relief only from the date of raising of industrial dispute. The learned companynsel submitted that more than one decision of this Court has affirmed the said view. We find it difficult to agree with Shri Pai. In principle we find numberbasis for the said companytention. The Industrial Disputes Act does number provide for any such limitation. The definition of the expression industrial dispute in Clause K of Section-2 of the Act does number companytain any such limitation. We are unable to see on what basis can such restriction be inferred or implied. It must be remembered that the Industrial Tribunal Labour Court 1056 is supposed to be a substitute forum to the Civil Court. Broadly speaking, the relief which the Civil Court companyld grant in an industrial dispute can be granted by the Industrial Tribunal Labour Court. Indeed the Industrial Tribunal Labour Court is number bound by technical rules of procedure which bind the Civil Court. See J.K Cotton Spinning and Weaving Mills v. L.A. Tribunal, 1963 2 L.L.J. 436/444 AIR 1964 SC 737 In such circumstances we see numberjustification for holding that the Industrial Tribunal or for that matter a Labour Court has numberjurisdiction to grant relief from a date anterior to the date on which the dispute is raised. Take a case where the Labour Union raises a dispute on a particular date but says that the said relief should be granted from an anterior date. We see numberreason why the Industrial Tribunal should be held to have numberpower to grant relief with effect from such anterior date if it is found to be warranted by the facts and circumstances of the case. Here it is necessary to emphasize the distinction between the existence of power and its exercise. It is one thing to say that the Tribunal has numberpower to grant such relief and it is an altogether different thing to say that in a given case it ought number to grant such relief. We are only emphasizing the aspect of power. Whether in a given case relief should be granted with effect from a date anterior to the date of raising the dispute is a matter for the Tribunal to decide in the facts and circumstances of that case. Now let us examine whether any decision of this Court supports Mr. Pais companytention. The first decision relied upon by him is in Jhagrakhand Collieries Private Ltd. and another v. Central Government Industrial Tribunal. Dhanbad and others, 1960 2 Labour Law Journal 71. The observations relied upon are at page 77 of the Report which read thus Besides, the Appellate Tribunal has failed to companysider the fact that the present demand was made for the first time in September 1952. The industrial tribunal had companysidered this question and had definitely found that numberwithstanding the suggestion by the respondents to the companytrary there was numberreliable evidence to show that this demand had-been specifically and clearly made prior to 27 September 1952. Now, if the respondents did number make a specific claim until September 1952 it would number be fair or just to allow them the benefit of the present increase directed by the award even prior to the date of the demand. 1057 We do number think that the above observations can be read as imposing a limitation, of the nature companytended for Mr. Pai, upon the power of the tribunal. All that is said by this Court in the said case is that inasmuch as the demand itself was raised in September 1952 and numbersuch demand was ever made prior to September 1952, it was number fair or just to grant relief with effect from a date anterior to September 1952. The next decision relied upon is in Workmen of New Eqerton Woollen Mills v. New Eqerton Woollen Mills and others, 1969 2 LLJ 782. The passage relied upon from this decision is at page 791. It reads As regards the date on which the award should companye into force, industrial tribunals have treated the date of demand and the date of the award as two extreme points. The tribunals, however, have discretion to fix any intermediate date depending upon the circumstances of each case. As has been said more than once, this Court would be reluctant to interfere with the date fixed by the tribunal if it has been done in the proper exercise of its discretion. In the present case the tribunal felt that in fairness to both the parties the intermediate date, namely 1 November 1963, When it passed its interim award was the proper date from which the award should companye into operation. The ground for selecting this date was that according to the tribunal the prices of companymodities began to rise steeply in this region from that date. That ground has number been companytroverted by any material to the companytrary. There can, there- fore, barely be any ground for our interference. The said passage can number be understood as imposing a limitation upon the power and jurisdiction of the Tribunal number can it be understood as holding that the Tribunal has numberpower to grant relief with effect from the date earlier than the date of demand. The observations aforesaid must be understood in the facts and circumstances of that case. The question raised number was number raised or companysidered by this Court in the said decision. It does number appear that the workmen had claimed a particular benefit with effect from a date earlier to the date of raising the dispute number does it appear that the Government had referred any such claim for adjudication by the Tribunal. In this case, it may be remembered, number only the demand 1058 raised on 19.3.73 was for extending the said benefit with effect from 15.11.1965, the reference by government was also in the same terms. In the circumstances, the reference to the practice of Industrial Tribunals can number be understood as a legal proposition that the Tribunal has numberpower or jurisdiction to grant relief with effect from a date earlier to the date of demand even where such demand is raised and referred to it by government. It needs numberemphasis that a Judgment should be understood in the light of the facts of that case and numbermore should be read into it than what it actually says. The third decision relied upon is an unreported decision of this Court in Workmen of National Tobacco Co. of India Ltd. Messrs National Tobacco Co. of India Ltd. Civil Appeal No. 852 of 1966 disposed of on 18.10.1968 . The Judgment was delivered by Bhargava, J. on behalf of J.M. Shelat, J. himself and C.A. Vaidialingam. J. The observations relied upon occur towards the end of the judgment and read thus Apart from these points forming the subject- matter of various issues, a general point argued on behalf of the Union was that the Tribunal should have made the award enforceable retrospectively at least with effect from the date of the reference of the dispute by the Government to the Tribunal. This Court has, in a number of cases, companysis- tently held that the question of making an award retrospective is in the discretion of a Tribunal, with the limitation that a Tribunal will be companymitting an error if it makes the award effective from a date earlier than the date of demand on the basis of which the industrial dispute is referred to the Tribunal. This Court does number interfere with the discretion exercised unreasonably or arbitrarily. In the present case, companysidering the circumstance that there will be a companysiderable increase in the burden of expenditure on the Company as a result of the revision of wage scales and the rates of dearness allowance, the Tribunal has decided that the award should be effective with effect from the usual date when it companyes into force, i.e., one month after the date of its publication by the Government. As we have just indicated, the Tribunal gave this direction because of the increased burden on the Company which would become 1059 unbearably heavy if the Company is directed to make payments for a number of past years for which accounts have already been closed by making the award retrospective from the date of reference. The discretion exercised by the Tribunal cannot be said to be arbitrary or un- reasonable, so that we find numberground for interfering with the award on this point. The learned judge says in the first instance that the question of making an award retrospective is in the discretion of the Tribunal but then qualifies it by saying that the Tribunal will be companymitting an error if it makes the award effective from a date earlier than the date of demand on the basis of which the Industrial dispute is referred to the Tribunal. No provision of law or any principle is cited in support of the said observation. Be that as it may, it is significant to numberice that the question which arises in the case before us did number arise companysideration before the said Bench. The argument for the Labour Union in that case was that the Tribunal should have made the award enforceable retrospectively at least with effect from the date of the reference of the dispute by the Government to the Tribunal. No companytention was urged that the award should be made effective from a date anterior to the date of raising the dispute number does it appear that that was a case where the demand raised by the workmen was for extending the benefit with effect from an anterior date. Therefore, there was numberoccasion for this Court to companysider the question number raised. When the issue relating to the power of the Tribunal to grant a relief or benefit with effect from a date anterior to the date of raising the dispute was number at all raised or companysidered by the Court, it would number be proper to read the said observations as negativing the said companytention. We are, therefore, of the companysidered opinion that the observations aforesaid do number support the companytention urged by Shri Pai. So far as the facts of the present case are companycerned, it must be remembered that the Labour Union had raised this dispute with the Management as far back as 2.11.1965. Conciliation was taken up by Conciliation Officer and the Conciliation Board. The Board had reported failure as far back as 15.3.1967. It is the said demand which was raised by the Union in its Memorandum dated 26.4.1968 on the basis of which a reference was made by the Government to the Industrial Tribunal on 5.7.1968. Even when a fresh demand was raised on 19.3.1973 the demand was that the daily-rated workmen should be given the benefit claimed by 1060 them with effect from 15.11.1965. Thus the demand raised on 19.3.73 was number a fresh demand. It was reiteration of the demand raised as far back as November 1965. It is number suggested that the demand raised in November 1965 was number raised before or submitted to the Management. Even other- wise, the demand raised on 19.3.73 assuming that it was a fresh demand was for extending the said benefit with effect from an anterior date namely, 15.11.1965. It was the said demand which was referred by the Government to the Tribunal. We see numberreason why the Tribunal companyld number have awarded relief from the date earlier than 1973 if it found that such a demand was justified and warranted in the facts of the case Actually the Tribunal granted the benefit with effect from 1.1.1968 only and number with effect from 15.11.1965 as demanded by the Workmen. Mr. Pai then companytended that the order of reference to Industrial Tribunal made on 5.7.1968 was questioned by the Management by way of a Writ Petition in the Bombay High Court and that the said Writ Petition was allowed under a companysent order, whereunder the workmen agreed to raise a fresh dispute. He submits that a fresh dispute means a dispute claiming benefit only from the date on which the dispute is raised. We see numberbasis for such restricted understanding. The order of the Court in Writ Petition 708 of 1968 reads as follows Order dated 5.7.1968 is set aside without prejudice to the rights of the respondents to refer fresh dispute in respect of the same demands according to Law. Firstly, it may be numbericed that the order does number say that the fresh dispute that may be raised should claim the benefit only from the date of raising the fresh dispute. Secondly, and more importantly, the order says that the fresh dispute to be raised was to be in respect of the same demands. Now the words same demands mean the very same demand which was being raised by the workmen from November 1965 onwards. We are, therefore, unable to read the said order of the High Court as imposing or implying any restriction upon the workmen to limit the benefit claimed by them only from the date of the raising of the fresh demand. It was perfectly open to them to raise a demand, subsequent to the said order, claiming the benefit with effect from a date anterior to the date of raising the demand. Mr. Pai then submitted that the demand raised by the workmen on 26.4.1968 cannot be said to raise an industrial dispute inasmuch as an in- 1061 dustrial dispute arises only when the demand is submitted to the Management. A demand by workmen addressed to the Government can never companystitute, an industrial dispute, he submits. He, therefore, says that the Tribunal had numberjurisdiction to award the benefit with effect from 1.4.1968. Reliance is placed upon the decision of this Court in The Sindhu Resettlement Corporation Lid v., The Industrial Tribunal of Gujarat Ors., 1968 1 SCR 515. In that case the companytention urged by the Management was that inasmuch as the workmen did number raise any dispute with respect to reinstatement and because the dispute raised by them related only to payment of retrenchment companypensation, the Government had numberpower or justification for making a reference relating to reinstatement. It is in that companynection that the following observations, relied upon by Shri Pai, were made. If numberdispute at all was raised by the respondents with the management, any request sent by them to the Government would only be a demand by them and number an industrial dispute between them and their employer, Ai, industrial dispute, as defined, must be a dispute between employers and employers, employers and workmen, and workmen and workmen. A mere demand to a Government, without a dispute being raised by the workmen with their employer, cannot become an industrial dispute. Consequently the material before the Tribunal, clearly showed that numbersuch industrial dispute, as was purported to be referred by the State Government to the Tribunal, had ever existed between the appellant Corpn. and the respondents and the State Government in making a reference, obviously companymitted an error in basing its opinion on material which was number relevant to the formation of opinion. The Government had to companye an opinion that an industrial dispute did exist and that opinion companyld only be formed on the basis that there was a dispute between the appellant and the respondents relating to reinstatement. Such material companyld number possibly exist when, as early as March and July, 1958, respondent No. 3 and respondent No. 2 respectively had companyfined their demands to the management to retrench- ment companypensation only and did number make any demand for reinstatement, On these facts, it is clear that the reference made by the Government was number companypetent. The only 1062 reference that the Government companyld have made had to be related to payment of retrenchment companypensation which was the only subject matter of dispute between the appellant and the respondents. It is evident from a reading of the above para that the only dispute raised by the workmen before the Management related to retrenchment companypensation, which means that the industrial dispute thus arising was companyfined only to the payment of retrenchment companypensation. The Workmen had never demanded reinstatement before the Management. They, however, made a demand for reinstatement in their representation demand made before the Government and the Government referred the dispute relating to reinstatement to the Tribunal. It is in the above circumstances that the said observations were made. In this case, however, the demand in question was raised by the workmen before the Management as far back as November 1965. Conciliation was attempted but failed. It is then that the workmen submitted a demand before the Government and the Government made a reference on 5.7.1968. That reference was numberdoubt set aside by the High Court but we do number know the basis of the said decision. Be that as it may, the fact remains that the workmen were left free to raise a fresh dispute with reference to the same demands, which they actually did on 19.3.1973. They expressly claimed the benefit retrospectively from 15.11.1965. We are, therefore, unable to see how the Observations in Sindhu help the Management in this case. For the above reasons, we are of the opinion that the Division Bench was number right in holding that the Industrial Tribunal had numberpower to grant the relief claimed by the Workmen with effect from a date anterior to 19.3.1973 the date on which the fresh demand was raised numberwithstanding the fact that the said demand specifically claimed the benefit from an anterior date i.e. 15.11.1965, and. which demand was referred to it by the Government. For the above reasons, the appeal is allowed and the Judgment and Order of the Division Bench of the Bombay High Court in appeal No. 247 of 1977 dated 1.9.1992 is set aside.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 666 of 1993. From the Judgment and Order dated 14.6.1988 of the Central Administrative Tribunal, Madras in T.A. No. 12 of 1988. N. Krishnamani, T. Raja and Pravir Choudhary for the Appellant. Altaf Ahmad, Addl. Solicitor General, V.N. Ganpule, Hemant Sharma and S.N. Terdol for the Respondents. The Judgment of the Court was delivered by KULDIP SINGH, J. Special leave granted. Applications for impleadment are allowed. The appellant was in the service of the Central Government for a period of about 15 years. He was thereafter permanently absorbed in a public undertaking, from where he retired on April 1, 1984. The question for our companysideration is whether the appellant on absorption in the public undertaking was eligible for pro-rata pension and death-cum-retirement gratuity based on the length of his qualifying service under the Government till the date of absorption. The appellant was serving the Audit Department Defence Service of the Government of India as Substantive Upper Division Clerk. He was sent on foreign service to Neyveli Lignite Corporation Ltd. public sector undertaking on January 9/10, 1961. He was permanently absorbed in the public undertaking with effect from August 1, 1964. It is number disputed that the appellant, having joined Central Government service on July 25, 1949, had companypleted 15 years of pensionable government-service. On the date of appellants permanent absorption in the public undertaking the retirement benefits were regulated by Memorandum dated November 10, 1960 issued by the Ministry of Finance Department of Expenditure , New Delhi. 1082 According to the said Memorandum the retirement benefits for service rendered by a government servant before his absorption in a public undertaking, were admissible equal to what the government would have companytributed had the individual been on companytributory provident fund terms, with 2 simple interest thereon. The Government of India subsequently issued Memorandum dated June 16, 1967 providing revised terms and companyditions of absorption in Central Public Sector Undertakings but restricted the revised benefits only to those who were absorbed on or after June 1.6, 1967. The operative features of the revised instructions were as under- A permanent government servant with number less than 10 years qualifying service on absorption in public undertaking was eligible for pro-rata pension and death-cum-retirement gratuity based on the length of his qualifying service under government till the date of absorption. The pension was to be calculated on the basis of average emoluments immediately before absorption. The pro-rata pension, gratuity, etc. admissible in respect of the service rendered under the government was disbursable only from the date the government servant would have numbermally superannuated had be companytinued in service. The appellant retired from the public undertaking on April 1, 1984. It is number disputed that on January 15, 1974 the appellant was paid a sum of Rs. 3036 as retirement benefits in terms of the Memorandum dated November 10, 1960. The benefit of the revised terms and companyditions of absorption as companytained in the Government Memorandum dated June 16, 1967 was denied to the appellant on the short ground that he was absorbed in the public undertaking prior to the date of companying into force of the said Memorandum. The appellant filed a writ petition tinder Article 226 of the Constitution of India on October 19, 1984 in the Madras High Court seeking a mandamus directing the respondents to grant him pro-rata pension and all other benefits admissible under the revised Memorandum dated June 16, 1967. As an interim measure the High Court directed that the appellant be paid 50 per cent of the pro-rata pension and other pensionary benefits 1083 under the Memorandum dated June 16, 1967 from the date of his absorption in the public undertaking. The writ petition was transferred to the Central Administrative Tribunal, Madras. The tribunal by its judgment dated June 14, 1988 dismissed the application and rejected the claim of the appellant. This appeal by way of special leave is against the judgment of the Central Administrative Tribunal. The appellant has questioned the validity of the companydition imposed in the Memorandum dated June 16, 1967 making the Memorandum applicable only to such of the employees who are absorbed in the public undertakings on or after June 16. 1967. According to the appellant it was number open to the government to deny the benefit of the Memorandum to those employees who were absorbed prior to the date of the Memorandum as it would bring into existence arbitrary classification in respect of government employees absorbed in the public undertakings prior to June 16, 1967 and thereafter. The appellant has companytended that such classification is number warranted under Articles 14 and 16 of the Constitution as it has numbernexus with the object sought to be achieved by the government Memorandum. The companytention of the respondents, on the other hand, is that the revised retirement benefits were introduced to attract more and more government servants for permanent absorption in government undertakings to build up their cadres, It was thus an incentive for encarding suitable persons in the government undertakings. According to the respondents, being a new incentive, it has been given effect from the date of issue of orders and there is numberhing arbitrary or discriminatory in fixing the cut-off date. There is numberdispute that Neyveli Lignite Corporation Ltd. is a body which is sponsored, financed and companytrolled by the Central Government. More and more government functions are being brought under the government undertakings and autonomous bodies. There is companysiderable mobility from Central Government Departments to the public undertakings. The object of bringing into existence the revised terms and companyditions in the Memorandum dated June 16, 1967 was to protect the pensionary benefits which the Central Government servants had earned before their absorption into the public undertakings. Restricting the applicability of the revised Memorandum only to those who are absorbed after the companying into force of, the said Memorandum, would be defeating the very object and 1084 of the revised Memorandum. It is number disputed that the appellant along with other Central Government employees was sent on foreign service to the public undertaking in the year 1961. He was absorbed in the year 1964. All those, who joined on foreign service alongwith the appellant but were absorbed after June 16, 1967, have been given the benefits under the revised Memorandum. Denying the same to the appellant would be companytrary to fairplay and justice. Assuming that the revised Memorandum is an incentive to attract Central Government employees to public undertak- ing,,, the persons who are so attracted do number become a different class. They join the same class to which the persons like the appellant belong. Therefore, all those Central Government employees who were absorbed in public undertakings either before June 16, 1967 or thereafter and were serving the public undertakings, are entitled to the benefits provided under the Memorandum dated June 1.6, 1967. We do number, also, find substance in the companytention that the revised benefits being new it companyld only be prospective in operation and cannot be extended to employees who were absorbed earlier. It is numberdoubt companyrect that the Memorandum dated June 16, 1967 is prospective which only means that the benefit.-, therein can be claimed only after June 16, 1967. The Memorandum, however, takes into companysideration the past event that is the period of service under the Central Government for the purposes of giving pro- rata pension. Whoever has rendered pensionable service prior to companying into force of the Memorandum would be entitled to claim the .benefits under the said Memorandum. Restricting the benefits only to those who were absorbed in public undertakings after June 16, 1967 would be arbitrary and hit by Articles 14 and 16 of the Constitution. We may examine the claim of the appellant under the Central Civil Services Pension Rules, 1972 the Rules . Rule 37 of the Rules is as under- A Government servant who has been permitted to be absorbed in a service or post in or under a companyporation or companypany wholly or substantially owned or companytrolled by the Government or in or under a body companytrolled or financed by the Government shall, if such absorption is declared by the Government to be in the public interest, be deemed to have retired from service from the date of 1085 such absorption and shall be eligible to receive retirement benefits which he may have elected or deemed to have elected, and from such date as may be determined, in accordance with the orders of the Government applicable to him Provided that numberdeclaration regarding absorption in the public interest in a service or post in or under such companyporation, companypany or body shall be required in respect of a Government servant whom the Government may, by order, declare to be a scientific employee. Rule 37, thus, provides that a government servant who has been permitted to be absorbed in service in a Central Government public undertaking in public interest, be deemed to have retired from service from the date of such absorption and shall be eligible to receive retirement benefits in accordance with the orders of the Government applicable to him. It is number disputed that the appellant was permitted to be absorbed in the Central Government public undertaking in public interest. The appellant, as such, shall be deemed to have retired from government service from the date of his absorption and is eligible to receive the retirement benefits. It is numberdoubt companyrect that the retirement benefits envisaged under Rule 37 are to be determined in accordance with the government order but the plain language of the rule does dot permit any classification while granting the retirement benefits. When the Rule specifically provides that all the persons who fulfil the pre-conditions prescribed therein shall be deemed to have retired from government service from the date of absorption and shall be eligible to receive retirement benefits then the government while granting benefits cannot deny the same to some of them on the basis of arbitrary classification. All those persons who fulfil the companyditions under Rule 37 are a class by themselves and numberdiscrimination can be permitted within the said class. The government action in restricting the benefits under the revised Memorandum dated June 16, 1967 only to those who are absorbed after that date goes companytrary to the Rule and cannot be sustained. We, therefore, allow the appeal, set aside the judgment of the Central Administrative Tribunal and direct the respondents to grant pro-rata pension and other benefits to the appellant under the office Memorandum dated June 16, 1967. The respondents are directed to finarise the benefits 1086 within three months from today and all the arrears of pension etc. shall be paid to the appellant within one month thereafter with 12 interest. Any payment already received by the appellant under the interim order of the High Court has to be adjusted. The appellant shall be entitled to companyts which we quantify as Rs. 10,000. We allow I.A. 4/91 and direct that the applicants therein namely, K.B.L. Mathur, Jaswant Lal Jetlie and C.L.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2629 of 1980. From the Judgment and Order dated 17.3.80/25.7.80 of the Calcutta High Court in Original Decree No. 10 of 1980. Dr. Shankar Ghosh, Somnath Mukherjee and P.K. Mukherjee for the Appellant. Rathin Das for the Respondents. The Judgment of the Court was delivered by KASLIWAL, J. This is a tenants appeal by grant of Special Leave in a suit for eviction decreed against him by all the Courts. The appellant took one road side shop room in the ground floor of premises No. 75, Surendra Nath Banerjee Road, Calcutta on rent Rs.50 per month. On 27th September, 1973 the respondents herein purchased the premises in question from the Commissioner of Partition and Receiver in High Court Suit No. 1183 of 1961 Anuo Kumar Dhar v. Satya Narayan Dhar Ors. , a suit for partition etc., between the owners of the said premises. The said Commissioner of Partition and Receiver numberified the appellant about the said sale and asked him to attorney his tenancy and to pay rent to the respondents. The appellant as such started paying rent to the respondent purchasers till January, 1975. On 21st May, 1975 the respondent landlords sent a numberice to quit on the ground of default in the payment of rent and subletting. The appellant sent a reply in writing on 6th June, 1975 denying the alleged default in payment of rent as well as subletting. The respondents filed a suit for ejectment on 12th December, 1975 in the City Civil Court at Calcutta IIIrd Bench . The suit was based on the ground of default in the payment of rent and subletting. The trial companyrt decided the question of default in the payment of rent in favour of the appellant but decided the question of subletting against him and as such decreed the suit by Judgment dated 12th June, 1979. The appellant aggrieved against the aforesaid Judgment filed an appeal before the High Court. A Division Bench of the High Court companysisting of N.C. Mukherji and Surendra Mohan Guha, JJ. heard the appeal. Guha, J. held that the plaintiffs had knowledge of assignment or subletting in favour of Sujoy Kumar Dass Gupta much earlier than the last payment of rent in January, 1975. In this view of the matter Guha, J. held that the rent having been accepted after the knowledge of subletting long before the determination tenancy, the natural inference from this companyduct would be that the plaintiffs had waived or dispensed with their right of forfeiture. Guha, J. as such accepted the appeal and directed the dismissal of the plaintiffs suit. N.C. Mukherji, J. disagreed with the aforesaid view of Guha, J. and according to him the tenants liability to eviction arose under the West Bengal Premises Tenancy Act, 1956 hereinafter referred to as the Act once the fact of subletting was proved. According to Mukherji, J. a tenant under the Act was under an obligation to pay rent to the landlord and there was numberquestion of waiving the right of forfeiture by accepting the rent by the landlord. In view of the difference of opinion between the-two Learned Judges the matter was referred to third Learned Judge. Mr. P.K. Banerjee J., The third Learned Judge by his order dated 23rd June, 1980 agreed with the view of N.C. Mukherji, J. The majority view being in favour of the respondent landlords, the appeal was ultimately dismissed by the High Court by order dated 25th July, 1980. Aggrieved against the Judgment of the High Court, the tenant has companye in appeal to this Court. We have heard Learned companynsel for the parties and have gone through the record. The trial companyrt as well as all the Learned Judges including Guha, J. in the High Court have recorded a finding of fact that there was numberprevious companysent in writing by the landlord for the sub- tenancy created by the tenant appellant. This finding of fact is binding on the appellant and cannot be assailed before this Court. The only question on which Guha, J. held in favour of the tenant appellant was that the rent having been accepted after the knowledge of sub-letting, the natural inference from this companyduct would be that the landlords had waived the right of claiming eviction against the tenant. In our view in the facts and circumstances of the present case the aforesaid view taken by Guha, J. is number companyrect. A perusal of the provisions of Sections 13 and 16 of the Act make the position clear. The relevant portions of the aforesaid provisions are reproduced as under- Section 13 Protection of tenant against eviction Notwithstanding anything to the companytrary in any other law, numberorder or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following groups, namely- Where the tenant or any person residing in the premises let to the without the previous companysent in writing of the landlord transfers, assigns or sublets in whole or in part the premises held by him Section 16 Creation and termination of sub- tenancies to be numberified- Where after the companymencement of this Act, any premises are sublet either in whole or in part by, the tenant with the previous companysent in writing of the landlord, the tenant and every sub-tenant to whom the premises are sublet shall give numberice to the landlord in the prescribed manner of the creation of sub-tenancy within one month from the date of such subletting and shall in the prescribed manner numberify the termination of such subtenancy within one month of such termination. Where before the companymencement of this Act, the tenant with or without the companysent of the landlord, has sublet any premises either in whole or in part, the tenant and every sub-tenant to whom the premises have been sublet shall give numberice to the landlord of such subletting in the prescribed manner within six months of the companymencement of this Act and shall in the prescribed manner numberify the termination of such-tenancy within one month of such termination. A perusal of the above provision clearly show that when there was numberprevious companysent in writing of the landlord for creation of sub-tenancy it shall be a ground for eviction in terms of Section 13 1 a of the Act. Even in case of creation of such sub-tenancy with the companysent of the landlord in writing it was necessary to follow the further procedure prescribed under Section 16 1 of the Act. Mere knowledge and or acceptance of rent cannot defeat the landlords right to get a decree for ejectment on the ground of sub-letting. If the view as companytended on behalf of the appellant is accepted the provisions of both the above sections 13 and 16 would become nugatory. There is a clear mandate in Section 13 1 a that the protection against eviction to the tenant shall number be available in case the tenant transfers, assigns or sublets in whole or in part the premises held by him without the previous companysent in writing of the landlord. It was companytended by the learned companynsel for the appellant that the provision as regards companysent may be treated as mandatory but so far as the writing part of the companysent is companycerned the same may be treated as directory. It was also companytended that in the present case the sub-tenancy was created in 1970 even before the purchase of the suit premises by the present plaintiff landlords on 27th September, 1973 and in this view of the matter the present plaintiff landlords cannot file a suit for eviction on the ground of sub-letting under Section 13 1 a . Reliance in support of the above companytention has been placed on A.S. Sulochna v. C Dharmalingam, 1981 1 SCC 180. We find numberforce in the above companytention. The above case relied on by the Learned companynsel for the appellant is altogether distinguishable. In that case the relevant provision for companysideration was Section 10 2 ii a of the Tamilnadu Buildings Lease and Rent Control Act, 1960. The undisputed facts in that case as observed in the Judgement were that the father of the appellant landlord had granted a lease in favour of the father of the respondent tenant prior to 1952. The father of the appellant as also the father of the respondent both had died and respondent was accepted as a tenant upon the death of his father in 1968. The suit for eviction on the ground of unlawful sub-letting was filed in 1970 by the appellant who had inherited the property from her father. Admittedly, neither the appellant number the respondent had any personal knowledge about the terms and companyditions of the lease number they had any personal knowledge regarding the circumstances in which the father of the respondent tenant had created a sub-tenancy way back in 1952, 18 years before the institution of the suit. Neither the appellant number respondent had any personal knowledge as to whether or number the sub-tenancy was created with the written companysent of the landlord 18 years back in 1952. On these facts it was held that there was numberhing on record to show that the sub-letting which was made 18 years before the institution of the suit was in violation of the relevant provisions of law. There was numberevidence direct or circumstantial on the basis of which it companyld be said that the lease did number companyfer on the father of the respondent the right to create a sub-tenancy, or, that it was done without written companysent of the then landlord that is to say, the father of the appellant. Thus in the above case the plaintiff landlord had inherited the property from her father and had brought a suit for eviction on the ground of sub-letting which was created 18 years prior to the suit. This Court held that the flouting of the law, the sin under the Rent Act must be the sin of the tenant sought to be evicted, and number that of his father or predecessor in interest. Respondent inherited the tenancy, number the sin, if any, of his father. The law in its wisdom seeks to punish the guilty who companymits the sin and number his son who is innocent of the rent law offence. The above case is further distinguishable because the sub-tenancy was created in 1952 long before the Act which came into force in 1960. So far as the facts of the case in hand before us are quite simple. Admittedly a sub-tenancy has been created in 1970 without companysent in writing of the previous landlord and the only question for companysideration is whether any waiver can be applied against the present landlords merely on account of accepting rent till January, 1975. The third Learned Judge of the High Court has relied on the provisions of sections 23 and 24 of the Act in order to hold that the question of waiver is only restricted under the aforesaid two sections which deal with the question of accepting rent deposited under Section 21 in the Court or acceptance of rent in respect of the period of default in payment of rent where there is numberproceeding pending in the Court for the recovery of possession of the premises. In our view there is numberneed of restricting the question of waiver under the provisions of sections 23 and 24 only which deal with special kind of situation. We are companysidering the question of waiver independently of the provisions of the Act and it would be clear that there is numberquestion of waiver in the present case. Waiver is a question of fact which depends on the facts and circumstances of each case. In the case of waiver of any provisions of the Statute it is necessary to prove that there was companyscious relinquishment of the advantage of such provisions of the Statute. In the case like the present one before us, it was necessary for the tenant appellant to prove that the landlords had accepted the rent being fully companyscious that by this act they were relinquishing the right of eviction available to them on the ground of sub-letting under Section 13 1 a of the Act. The Rent Act is for the protection of the rights of the tenants but at the same time it does number permit the sub- letting by a tenant without the companysent in writing of the landlord and this provision has been kept in public interest for the benefit of the landlords and the same can only be negatived by an act of companyscious relinquishment of such right by the landlord. We find support in the above view in a decision of this Court in M S Shalimar Tar Products Ltd. H. C. Sharma and Other, 1988 1 SCC 70. In the above case it was held that, Section 14 1 proviso b and 16 2 and 3 of the Delhi Rent Control Act enjoin the tenant to obtain companysent of the landlord in--writing to the specific Sub-letting. This requirement seraves a public purpose i.e. to avoid dispute as to whether there was companysent or number. The mere permission or acquiescence is number enough. There is numberimplied permission. Any other interpretation of the provisions will defeat the object of the statute and is, therefore, impermissible. Apart from the circumstances mentioned above it has been further found established that the respondent landlord had given a numberice to the appellant to quit determining the tenancy on 21st May, 1975. In reply to the aforesaid numberice the tenant appellant had number disclosed that by a deed of assignment dated 21st June 1974 in favour of Sujoy Kumar Das Gupta sub-letting had been made. Thus this fact was number disclosed even in the reply to the numberice as late as 6.6.1975. This fact regarding sub-letting to Sujoy Kumar Das Gupta came to the numberice of the landlord respondent for the first time on 15th September, 1975 when Sujoy Kumar Das Gupta, the Sub lessee himself sent a numberice through his Solicitor intimating to the respondent landlords that partnership between Shri Gupta and appellant had been dissolved. In the said numberice it had been stated that the appellant Pulin Behari Pal due to old age and physical infirmities had become unable to discharge his duties in the partnership business and as such had transferred, assigned all his interest, goodwill of the business and his right, title and interest to the said Sujoy Das Gupta absolutely and forever. Thus any acceptance of rent from the appellant Pulin Behari Pal in January, 1975 cannot amount to any waiver in respect of the right of eviction on the ground of sub-letting. Be that as it may, admittedly there is numbercompliance of Section 16 also in the present case and this is an additional factor on the basis of which the tenant appellant cannot escape the liability of eviction. In the result we find numberforce in the present appeal and it is accordingly dismissed with companyts. In facts and circumstances of the case we grant time to vacate the suit premises on or before 30th April, 1993 on furnishing an usual undertaking. before this Court within four weeks.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 14581469 of 1988. From the Judgment and Order dated 16.9.82 of the Punjab Haryana High Court in R.S.A. Nos. 902-913 of 1973. P. Goyal, Rajinder Sachar, Ms. Amita Gupta, G.K. Bansal, C. Dhiman, Ms. Prabha Jain, K.G. Bhagat, Ravindra Bana, H. Bhagat, Ms. Kusum Choudhary, B.D. Sharma, Narottam Vyas, P.N. Puri, S.C. Khunger and Ravi Khunger for the appearing Parties. The Judgment of the Court was delivered by VENATACHALA, J. 1. In these Civil Appeals by Special Leave, of the State of Punjab, companyrectness of the companymon judgment dated September 16, 1982 by which Regular Second Appeals Nos. 902-913 of 1973 were dismissed by the High Court of Punjab and Haryana, is questioned. Facts, giving rise to these Civil Appeals lie in a narrow companypass. In the District of Gurdaspur certain land-owners had permitted different brick-manufacturers to remove brick- earth from lands in their respective estates on leases or licences granted by them. The Mines and Minerals Regulation Development Act, 1957 for short the Act having companye into force in the State of Punjab, the Punjab Minor Mineral Concession Rules, 1964 for short the Rules were also made and brought into force with effect from April 25, 1964. With the companying into force of the provisions of the Act and the Rules in the State of Punjab, its officers took steps to prevent the said brick-manufacturers from removing the brickearth from the lands in the estates on the strength of the leases and licences executed in their favour by the land-owners without obtaining the mining licences and paying royalty, under the Rules. The said manufacturers of bricks although removed brick-earth from the companycerned lands by paying royalty and obtaining licences for some years, they filed suits in civil companyrts of original jurisdiction to restrain by perpetual injunctions the State of Punjab and its officers from demanding payment of royalty for removal of brick-earth from owners lands and insisting upon obtaining of minimum licences or permits for the purpose. The relief of injunctions sought in those suits was based on their claim that numberwithstanding the fact that brick-earth was regarded as minor-mineral under the Rules, State of Punjab number being the owner of brick-earth in the companycerned lands, there arose numberneed to pay royalty to State for removal of such brick-earth and to obtain mining licences or permits from the State. The claim so made, having found favour with the Civil Courts of first instance, the suits were decreed and reliefs sought for therein were granted. The First Appeals carried against such decrees by the State of Punjab before the First Appellate Courts did number meet with success. Further Regular Second Appeals carried to the High Court met with the same fate when they were dismissed by a learned single Judge of that Court by a companymon judgment dated September 16, 1982. it is that companymon judgment, which has become the subject-matter of the Punjab States present Civil Appeals by Special Leave. On behalf of the State it was companytended firstly, that the companyrts below should number have, on the basis of entries in Wajib-ul-arz pertaining to the lands of the estates of the land-owners found that the brick-earth in such lands did number vest in the state and secondly, that the lower appellate companyrts when were of the view that the entires in Wajib-ul- are, required the drawing of the presumption that the brick- earth in the companycerned lands belonged to the lands owners, they should have seen that such presumption was a rebuttable presumption and as such called for setting aside the decrees of the Courts of first instance, and remittal of the suits to the Courts of first instance with a direction to them to afford an opportunity to. the State to adduce rebuttal evidence. Both these companytentions cannot merit our acceptance for the reasons which we shall presently state. As some of the provisions of the Punjab Land Revenue Act, 1887 for short the Revenue Act which directly bear on the said companytentions would be helpful in appreciating the merit of those companytentions, they are set out at the outset. Section 31 which deals with record-of-rights relating to each estate companyprised of the lands from where brick-earth is being removed by the brick-manufacturers reads Record-of-rights and documents included therein- 1 Save as otherwise provided by this Chapter, there shall be record-of-rights for each estate. The record-of-rights for an estate shall include the following documents, namely a statements showing, so far as may be practicable- the persons who are land-owners, tenants or assignees of land revenue in the estate or who are entitled to receive any of the rents profits or produce of the estate or to occupy land therein the nature and extent of the interests of those persons, and the companyditions and liabilities attaching thereto the rent, land revenue, rates, cesses or other payments due from and to each of those persons and to the Government. b a statement of customs respecting rights and liabilities in the estate Section 41 which refers to the right of the Government in mines and minerals reads thus Rights of the Government in mines and minerals-All mines of metal and companyl and all earth-oil and gold washings shall be deemed to be the property of the Government for the purposes of the State and the State Government shall have all powers necessary for the proper enjoyment of the Governments rights thereto. Section 42 which relates to presumption as to ownership of forests, quarries and waste lands reads thus- Presumption as to ownership of forests, quarries and waste lands. 1 When in any record-of-rights companypleted before the eighteenth day of November, 1871, it is number expressly provided that any forest, quarry, unclaimed, unoccupied, deserted or waste land, spontaneous produce or other accessory interest in land belongs to the landowners, it shall be presumed to belong to the Government. When in any record-of-rights companypleted after that date it is number expressly provided that any forest or quarry or any such land or interest belongs to the Government, it shall be presumed to belong to the landowners. The presumption created by sub-section 1 may be rebutted by showing a from the records or report made by the assessing officer at the time to assessment or b if the record or report, is silent, then from a companyparison between the assessment of villages in which they existed, and the assessment of villages of similar character in which they did number exist, any forest or quarry, or any such land or interest that the forest, quarry land or interest was taken into account in the assessment of the land revenue. Until the presumption is so rebutted the forest, quarry, land or interest shall be held to belong to the Government. Brick-earth with which we are companycerned in the present appeals, is a minor mineral was number disputed, although it is number any of the mines or minerals companyned by section 41 of the Revenue Act as would make it become the property of the State. if the owner of such brick-earth is the State of Punjab, liability to pay royalty for removal of such brick- earth and to obtain permit or licence for such removal necessarily arises because of the operation of the Act and the Rules. But the companyrts below have companycurrently found that the present appeals have amen was in lands winch formed the estates of the private owners and as such the same belonged to such land-owners. It is so found on their reading of the entries in Wajib-ul-arz pending to,the companycerned estates. Wajib-ul-arz is a docu- ment included in the record-of-rights cannot be disputed since it companytains the statements on matters envisaged under clauses a and b of subsection 2 of section 31 of the Act. According to the companyrts below Wajib-ul-arz document being record-of-rights of estates companypleted after 18th day of November, 1871, and there being numberhing expressly stated in them that the forest or quarry or land or interest in the estates belong to the Government, the lands in such estates including brick-earth in them shall be presumed to belong to the companycerned land-owners as is declared in sub-section 2 of section 42 of the Rs,-venue Act. Again, it is pointed out by the companyrts that there being numberprovision similar to the provision in sub-section 3 which permits adducing of rebuttal evidence against the presumption that the lands belong to the State under sub- section 1 of section 42 of the Revenue Act, the presumption which arises under sub-section 2 of section 42 of the Revenue Act that the forest or quarry or land or interest belong to land-owner, cannot at all be rebutted by the State by adducing any companytrary evidence. Even other- wise, according to them, when the State has number chosen to adduce any evidence to rebut the presumption arising from the entries in Wajib-ul-arz document record-of-rights relating to the estates of lands whose brickearth is allowed by the land-owners to be removed by the brick-manufacturers who are the plaintiffs in the suits out of which the present Civil Appeals have arisen, there can be numbervalid reason for them to hold that the brick-earth in the lands of the estates companycerned has become the ,property of the State, so as to require the brick-manufacturers to pay royalty for removal of such brick-earth and obtain permits or licences under the Rules. In our view, when all the companyrts below have companycurrently recorded findings to the effect that the ownership of the brick-earth belong to land-owners and number to the State on a companyrect appreciation of all evidence adduced in the case and on a proper application of the law governing the same, there companyld be numberjustification to interfere with such findings in these appeals. We are also number shown any valid reason as to why we should set aside the lower companyrts judgments and decrees and send the matters to the Courts of first instance with a direction to permit the State to adduce rebuttal evidence as regards entries in record-of-rights. These appeals therefore, fail and are dismissed. However, in the facts and circumstances, parties are directed to bear their respective companyts in these appeals.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Contempt Petition No. 159 of 1992. IN Special Leave Petition C No. 12709 of 1991. From the Judgment and Order dated 26.4.1991 of the Calcutta High Court in Appeal No. 232 of 1990. L. Verma, R. Mukhejee, J. Gupta and M.L. Chibber for the Petitioners. Ranjan Dutta, Mrs. N. Dutta, Mrs. Mridula Ray and M.N. Shroff for the Respondents. The Judgment of the Court was delivered by P. JEEVAN REDDY, J. In a suit for specific performance certain interlocutory orders were passed by a Single Judge of the Calcutta High Court. On appeal a Division Bench of the said Court modified the said orders. A number of special leave petitions were filed in this Court against the orders of the Division Bench. Though the petitioners in these special leave petitions are different, the companytesting respondents in all these cases are companymon, namely Russel Estate Corporation and its managing partner Sri Hari Narayan Bhan. For the purpose of this petition, it is enough to mention that each of the petitioners in these S.L.Ps. is claiming to be entitled to allotment of one or more of the flats being companystructed by the respondents at Calcutta. Their companyplaint has been that ignoring the agreements in their favour, the respondents have been allotting the companystructed flats in favour of third parties thereby seeking to defeat their rights. On 1.8.1991 a Bench of this Court companyprising S. Ranganathan, M. Fathima Beevi and N.D. Ojha, JJ. passed the following order in I.A. No.2 of 1991 after hearing the respondents. Counsel accepts numberice. in the meantime, till this Special Leave Petition is disposed of, respondents 1 2 should number make any further allotment of any other flats in the building in dispute, with effect from today. Counsel for the petitioner companytends that the allotment of the flat, originally allotted to him, to some other person violates an oral order of a Division Bench of the High Court. It will be open to the petitioner to move the High Court for appropriate relief in this regard if so advised. This Contempt Petition is filed companyplaining that the respondents have allotted certain flats in favour of third parties in violation of the said order. So far as the petitioners in this Contempt Petition Major Genl. B.M. Bhattacharjee and Smt. S. Laha are companycerned, they claim to be interested in the flats on the 8th floor of the said building. At any rate the companyplaint in this Contempt Petition pertains to the said two flats. The petitioners say that the said flats have been allotted to the third parties in the month of January, 1992. They rely upon the report of a group of investigators National Bureau of Investigation in support of the said plea. Notice was issued to the respondents. In their companynter filed by Shri Hari Narayan Bhan it is stated that the two floors on the 8th floor described as east and west flats were allotted on 26th April, 1991 itself i.e., long prior to the order of this Court dated 1.8.1991. It is denied that the allotment of said flats took place in the month of January, 1992. The companyrectness of the Report of the National Bureau of Investigation is disputed. It is, however, companyceded that the possession of the said flats was handed over to the said third parties on 17th August, 1991 which is admittedly a date subsequent to the date on which this Court passed the aforesaid restraint order. It is also number disputed by them that the registered sale-deeds in respect of said flats in favour of the said third parties were also executed in March, 1992. The report of the Receiver Smt. Pratibha Bonnerjea, a retired Judge of the Calcutta High Court who was appointed as such by an order of this Court dated 7.1.1992 also supports the petitioners allegations. The relevant portion of the Report reads as follows Present companydition of these two flats in the floor. The western apartment in the 8th floor is occupied by one Mr. Mrs. Kamal Thavrani, Ms. Thavrani said that they are in occupation of the flat from December, 1991. Mr. K.K. Thavrani said that he had taken both the eastern and western apartments in the 8th floor. He produced a companyy of the agreement executed on 26.4.91 on a stamp paper purchased on 26.4.91 by M s. Russel Estate Corporation. The agreement relates to both the flats on the 8th floor for a total companysideration of Rs. 13,40,000. It is stated that the occupiers have taken possession in December, 1991. Mr. Thavrani submits that the companyveyance have been registered in March, 1992 but he is unable to produce the registered companyveyance as the same is still lying with the Registrar. We found eastern flat was number companyplete. Wooden work was going on. Photos Nos. 3 to 5 are attached to this effect. At the bearing of this Contempt Petition the respondents companynsel took the stand that the delivery of possession on 17.8.1991 and the execution of the registered sale-deed in March, 1992 do number companystitute violation of the Order dated 1.8.1991. His submission is that this Court merely restrained the allotment of flats. Allotment, according to the learned Counsel, means entering into the agreement of sale. Inasmuch as the agreement of sale with respect to the said two. flats on the 8th floor was entered into long prior to the said Order of this Court, it is submitted, there is numberdisobedience to the order of this Court. it is submitted that delivery of possession and the registration of the sale-deed s is in pursuance of the aforesaid agreement of sale and number in pursuance of any agreement of We entered into on or after 1.8.1991. The companynsel further submitted that even on the date when the aforesaid order was passed on 1.8.1991, the second respondent had represented to this Court that agreement of sale in respect of all the flats have already been entered into. In this view, it is submitted, there has been numbermisrepresentation or suppression of relevant facts on their part. We may mention that when we indicated our disagreement with the above stand during the companyrse of hearing, the companynsel for the respondents, Shri Dutta took time till 14th of January, 1993 to file a further affidavit additional companynter and or documents in companytinuation of the companynter already filed. The second respondent has accordingly filed a further affidavit on 14.1.1993. The companynsel for the petitioners disputes the companyrectness, genuineness and validity of the agreement, allegedly entered into on 26.4.1991 in respect of said flats. According to him, it is a fabricated document. He points out that the stamp paper for the said agreement of sale was purchased by the Russel Estate Corporation and number by the purchaser of the flats. It is also pointed out that the agreement is number a registered one and that it companyld have been fabricated at any time putting a back date. It is number necessary for us to pronounce upon the disputed question whether the agreement dated 26.4.1991 relating to the said two flats on the 8th floor is true and genuine. Assuming that the said agreement is true, we are yet of the opinion that the respondents have companymitted gross companytempt of this Court by their brazen violation of the order dated 18 1991. By the said order this Court directed the respondents 1 and 2 number to make any further allotment of any other flats in the building in dispute with effect from today. Now what does the word allotment mean in the companytext. In our opinion, the said word must be understood reasonably and having regard to the companytext. The first respondent is number like a Government Department or Public Corporation where an allotment order or allotment letter is issued from the office in pursuance of which other steps are taken. The first respondent is a proprietary companycern, according to the petitioners, whereas according to the respondents it is a partnership companycern. In either event, there is numbersuch thing as allotment in its case. Even number, it is number their case that they have issued any orders or letters of allotment. According to them, there was first an agreement of sale, then delivery of possession and finally a registered sale deed. We are of the opinion that in the companytext and circumstances, the word allotment in the said order means making over of the flats. In other words, it means delivery of possession and registration of the sale-deeds. An agreement of sale, that too unregistered, has numbersignificance in the companytext, difficult as it is to verify its truth and companyrectness. This companyrt companyld number be presumed to have interdicted such an uncertain thing. It must be remember that even according to the respondents they had represented to this Court, at the time the said order was passed, that they have already entered into agreements of sale in respect of the flats and yet this Court chose to pass the said order. In the circumstances, it cannot mean anything else than delivery of possession of flats and their sale. It may also mean an agreement of sale but its meaning is certainly number companyfined to an agreement of sale. To say so, as do the respondent, is to rob the order of any meaning or companytent. Mr. Dutta, the learned companynsel for the respondents companytended that the second respondent understood the allotment in a particular manner and that the said misunderstanding, if any, was bona fide. We are number prepared to agree. Firstly, there companyld number have been any doubt in the mind of Respondent with respect to the meaning of the order. Secondly, assuming that he had any doubt regarding its meaning, the least he companyld have done was to ask for a clarification of the said Order. He companyld well have represented that he had already entered into an agreement of sale on 26.4.1991 in restpect of these flats and that he may be permitted to deliver possession and or execute sale-deeds in respect of said flats in favour of third parties. He did numberhing of the sort. Having placed a highly restrictive and unwarranted interpretation upon the order of this Court, he went ahead and number only delivered possession of the flats to third parties subsequent to the said order but also registered sale-deeds in their favour. He thus rendered the said order nugatory. It was number open to the respondents to place a companyvenient interpretation upon the order and proceed to act upon it, thereby totally nullifying the order of this Court. In this companytext, we ought to refer to the companyduct of the second respondent as disclosed from the order of this Court dated August 7, 1992 to which one of us B.P. Jeevan Reddy, J. was a party. The first two paragraphs of the said order may be quoted in rull. In these special leave petitions numberice was duly served on the respondents and the matters came up for hearing initially before a Bench of this Court companyprising of Ranganathan J., Fathima Beevi J. and Ojha J. on 31.7.91 and 1.8.91when the parties were heard and certain interim orders were passed. Thereafter it was listed before a Bench of this Court of which Ranganathan J. and V. Ramaswami J. were members on a number of occasions at which the respondents were represented and numberobjection was voiced against the hearing of the matters by the said Bench. However, sometime later an attempt was made on behalf of the respondents to have these matters transferred from this Bench to some other Bench on the allegation that one of the Judges Ranganathan J. was biased against the respondents. This request was made before a Bench presided over by the learned Chief Justice by the second respondent who appeared in person and made the request for the transfer of the case. The prayer was rejected by the learned Chief Justice on 11.11.1991. Thereafter the matter was again fisted before a Bench companysisting of Ranganathan J., V. Ramaswami J. and Ojha J. On different occasions without any demur from the parties. It was then listed before a Bench companyprising of Ramaswamy J., Yogeshwar Dayal J. and Mohan J. on 4.3.92. This Bench directed the cases to be posted before a Bench of which Ranganathan J. is a member. About this time, an application seems to have been presented to the Registrar that this case should be transferred to some other Bench. However, the matters came up before us again some time last week when companynsel for the respondents agreed that the matters may be listed this week. The matters were fisted yesterday. A person claiming to be the son of the second respondent made a request that the matter should number be heard by this Bench. We rejected this request and made it clear to him that he should make arrangements for the companyduct of the case. The matters did number reach yesterday and when the matters came up today, a letter dated 6.8.92 written by the second respondent to his companynsel revoking the companynsels vakalatnama has been placed before us. But the respondent No. 2 did number appear before us number did he make other arrangements for the companyduct of the case. Sri Chatterjee, his advocate on record, appeared but expressed his inability to companyduct the case since his client had withdrawn the vakalatnama. We understand that in one of the matters the respondents are represented by another companynsel whose vakalatnama is also seen to have been revoked but she has number appeared or sought permission to withdraw from the case. In these circumstances we have numberother option but to proceed against the respondents ex parte. We are unable to accede to the respondents request made on a previous occasion by the son of the second respondent for transfer of case to some other Bench. The circumstances narrated above would show that the respondent has appeared before the Bench on several occasions without protest. The request made for transfer, after the rejection of the earlier petition by the learned Chief Justice, is belated and is just an attempt by the second respondent to circumvent the order already passed by the Chief Justice rejecting a request for transfer and only because the Constitution of the Bench is number to his liking. Such a request, we are clear, cannot be companyntenanced. It should be numbericed that the said order dated August 7, 1992 was passed number only in the special leave petitions but also in this very Contempt Petition. The attitude adopted by them before the Receiver Smt. Pratibha Bonnerjea retired Judge of Calcutta High Court, appointed by this Court as a Receiver in this case also discloses the total disregard and disrespect the Respondents have towards the orders of this Court. The Receiver says The next day, by a letter dated 22.8.92, Mr. N. Bhan informed me that he would number submit to the order dated 7.8.92 as the Bench was number properly companystituted due to the fact that the Honble Mr. Justice V. Ramaswami was one of the judges and that an application would be moved for recalling the said order. Thereafter, there was companyplete number-cooperation by M s. Russel Estate Corporation. The companyduct of the second respondent as evidenced from the aforesaid material establishes beyond doubt that the second respondent was trying to play with this Court and was companysistently flouting its orders. In the circumstances, the theory of bona fide belief, number put forward before us by his companynsel, cannot be accepted. We may at this stage deal with the further affidavit filed by the second respondent on 14.1.1993. In para 3 of the affidavit the second respondent has stated that he has the highest regard for this Court, that he has all along companyplied with the orders passed by this Court and that he never intended to flout or defy the orders of the Court. He stated further if in spite of the aforesaid, any order of this Honble Court has been violated, the same has been so done through mistake, inadvertence and by a misunderstanding of the meaning and purport of that order and surely number intentionally and for which unconditionally apologise for self and on behalf of the Respondent firm and I beg to be excused. Then in paragraphs 4 to 12 he has without waiving the aforesaid and fully relying thereupon repeated the companytentions which were urged by his companynsel before us and which we have dealt with hereinbefore. He stated that he understood this companyrts order dated 1.8.1991 as prohibiting only the entering into of agreements of sale and number delivery of possession or registration of the sale deeds. All the said companytentions we have dealt with hereinbefore. They need number be reiterated here. So far as the apology companytained in para 3 of the second respondents further affidavit is companycerned, it may firstly be mentioned that it is number really an unconditional apology though it purports to say so. While tendering unconditional apology in para 3, the second respondent has tried to defend his action in the subsequent paragraphs. Secondly, even if we companystrue paragraph 3 as tendering an unconditional apology, we are number minced to accept the same having regard to the companyduct of the respondent which we have adverted to hereinbefore with reference to the order of this companyrt and the report of the Receiver. Accordingly, we reject the apology tendered in para 3 of the further affidavit. For the above reasons, we hold the second respondent guilty of Contempt of this Court. Having regard to the facts and circumstances of this case, we impose a sentence of one months imprisonment in addition to a fine of Rs. 2,000 upon the second respondent. The fine shall be paid into this Court within two weeks from today, in default thereof the second respondent shall undergo a further imprisonment of two weeks. The second respondent shall also pay the companyts of the respondents in this Contempt case which are assessed at Rs. 5,000 within two weeks from today. In case of failure, the Respondents are free to execute this order as a decree of Court and recover the same from the Respondents.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 766 of 1993. From the Judgment and Order dated 7.2.92 of the Andhra Pradesh High Court in W.A. No. 1271 of 1991. Shanti Bhushan, K. Rajendra Chowdhary and R.K. Sharma for the Appellants. L. Sanghi, Duba Mohan Rao, Y.P. Rao, Dhruv Mehta, T.V.S.N. Chari, Ms. Suruchi Aggarwal and Ms. Bharati Reddy for the Respondent. The Judgment of the Court was delivered by KULDIP SINGH, J. Special leave granted. The Andhra Pradesh State Electricity Board the Board , in exercise of its powers under Section 49 of the Electricity Supply Act, 1948 the Act issued order dated September 17, 1975 granting rebate of 25 in demand and energy charges for High Tension Industries. It was specifically mentioned therein that the rebate was to be allowed from the date of going into regular production on or after January 1, 1976. The Board, thereafter, asked the Director of Industries to identify the High Tension Industries which would be eligible for the 25 rebate declared by the Board. The State Government issued the order dated July 13, 1976 extending the rebate to all the industries except 65 numberified in the Government order dated March 9, 1976. Thereafter the Board issued order dated August 10, 1976 extending the companycession to all the High Tension Industries except the 65 excluded by the State Government. The State Government issued order dated August 23, 1985 specifying certain incentives available to the industries in the three backwards districts of the Sate. The companycession of 25 tariff already granted by the Board was extended for two more years i.e. a total of five years. The Board withdrew the companycession of 25 rebate to the High Tension Industries by its order dated December 8, 1987. The State Government also issued similar order dated July 27, 1989 withdrawing the rebate. The respondent M s. Sarada Ferro Alloys Ltd. the Company decided to establish an industry to produce Ferro Chrome. According to the companypany it obtained a small scale industry certificate on September 5, 1986. It further obtained numberobjection certificate from Andhra Pradesh Pollution Board on November 12, 1986. The case of the companypany further is that it purchased 4.01 acres of land during the period September 1986 to May, 1989. The Board called upon the campany by its letter dated December 9, 1987 to deposit Rs. 8, 40, 200 towards service-lines. the companypany entered into an agreement with the Board on August 21,1989 for the supply of the electricity. It is the case of the companypany that it companymenced production on regular basis on August 11, 1990. The companypany requested the Board by its letter dated June 29, 1991 to extend companycession of 25 rebate for a period of five years from the date it started production. The companypany based its demand on the State Government order dated August 23, 1985. The Board by its letter dated July 9, 1991 declined to give the companycession to the companypany on the ground that the said companycession had already been withdrawn by the Board by its order dated December 8, 1987. The companypany challenged the companymunication of Board dated July 9, 1991 by way of a writ petition before the Andhra Pradesh High Court. The companypany further sought a declaration that it was entitled to 25 power rebate as declared by the State Government in its letter dated August 23, 1985. The learned Single Judge of the High Court by its judgment dated November 8, 1991 allowed the writ petition. The writ appeal preferred by the Board was dismissed by a Division beach of the High Court by its judgment dated February 7, 1992. This appeal by way of special leave is against the judgment of the High Court. The High Court allowed the writ petition of the companypany on the sole ground that the respondent-company having acted upon the representation made by the Board and the State Government, the doctrine of promissory estoppel was attracted and as such the Board and the State Government were bound to grand 25 rebate for a period of five years. The Division Bench of the High Court based its companyclusions on the reasoning which is reproduced hereunder- The material number before us clearly shows that by 30.6.87 the companypany had incurred an expenditure of Rs. 11,07,328 towards purchase of land and other expenditure including civil works. Even if we take 8.12.87 as the relevant date it cannot be disputed that by that date companysiderable expenditure was already incurred by the petitioner for setting up the industry and this was done on the basis of the promise held out by the Government in G.O. Ms. No. 375 dated 23.8.85 and the companysequential P. Ms. No. 689 dated 17.9.75, B.P. Ms. No. 691 dated 10.8.76 and B.P. Ms. No. 152 dated 13.2.78. Whichever date was taken into account, either 27.7.89 of 8.12.87, there is numbervalid reason for the Electricity Board to withdraw the companycessions earlier granted. As we have found on facts that the first respondent had acted on the promise held out by the Government and the Electricity Board, both of them arc bound by that promise. We have given our thoughtful companysideration to the reasoning and the companyclusions reached by the High Court. We are of the view that the High Court was number justified in applying the doctrine of promissory estoppel to the facts and circumstances of this case. This Court in Union of India v. Godfrey Phillips India Ltd., 1985 4 SCC 369 explained the principles of promissory estoppel in the following words- The true principal of promissory estoppel is that where one party has by his word or companyduct made to the other a clear and unequivocal promise or representation which is intended to create legal relations or effect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise or representation is made and it is in fact so acted upon by the other party, the promise or representation would be binding on the party making it and he would number be entitled to go back upon it, if it would be inequitable to allow him to do so, having regard to the dealings which have taken place between the parties. We may number examine the promise or representation said to have been made by the appellant and acted upon by the companypany. The operative part of the order dated July 13, 1976 issued by Board is as under The revised power tariff numberified by the A.P. State Electricity Board with effect from 20.10.1975 offers a rebate of 25 on demand and energy charges for specified H.T. companysumers as an incentive to new industries for the first three years from the date of their going into production emphasis supplied . The High Court has primarily based its companyclusions on the Government letter dated August 23, 1985. The relevant part of the said order is as under- Power - At present the Andhra Pradesh State Electricity Board offers 25 tariff companycession for the first three years for certain industries. This companycession would be extended for two more years i.e. a total of five years. Twenty-five per cent companycession tariff would be met for the additional 2 years from out of the Industries budget. It is clear from the Government order reproduced above that the Government extended the companycession already granted by the Board for three years for a further period of two years. We have, therefore, to see what is the promise or the representation held out to the companypany in the order of the Board dated July 13, 1976 reproduced above. We are of the view that the promise or representation made by the Board in its letter dated July 13, 1976, if any, was directly linked with the date of companymencement of production by the companypany. It is number disputed that the respondent- companypany companymenced production on companymercial scale on August 11, 1990. The incentive was withdrawn by the Board on December 8, 1987 and by the Government on July 27, 1989. Whichever date is taken into account the companypany was number entitled to the incentive as it had number companymenced production on or before either of these two dates. Even if it is assumed that a promise or representation was made by the Board in its letter dated July 13, 1976, the doctrine of promissory estoppel is number attracted in this case as the companypany failed to act upon the said representation. We do number agree with the assumption entertained by the High Court that once the companypany started the process of setting up an industry and had incurred expenditure, the Board was bound to keep its incentive open for the companypany till it started production. We are of the view that only those industries were entitled to the benefit of the incentive who fulfilled the requirements during the period the incentive was operative. Mr. Shanti Bhushan, learned companynsel for the appellant has further companytended that the orders dated July 13, 1976 and December 8, 1987 were issued by the Board in its statutory power under Section 49 of the Act. According to him these orders being statutory there can be numberpromissory estoppel against the Board. He further companytended that there were numberdirections by the State Government under Section 78A of the Act. The view we have taken on the question of promissory estoppel it is number necessary to go into these additional grounds urged by Mr. Shanti Bhushan. We allow the appeal and set aside the judgment dated November 8, 1991 of the learned Single Judge and dated February 7, 1992 of the Division Bench of the High Court in writ appeal. The writ petition filed by the respondent-company in the High Court is dismissed. We leave the parties to bear their own companyts.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 405 of 1993. From the Judgment and Order dated 21.11.90 of the Calcutta High Court in F.M.A.T. No. 1841 of 1986. Ramaswamy, Santosh Hegde, D.K. Sinha and J.R. Das for the Appellants. K. Bandhopadhyay and Somnath Mukherjee for the respondents. The Judgment of the Court was delivered by P. JEEVAN REDDY, J. Heard the companynsel for the parties. Leave granted. The appeal is directed against the judgment of the Division Bench of Calcutta High Court affirming the judgment of the learned Single Judge declaring that Agragamies in West Bengal Civil Emergency Force are entitled to be placed in the scale of Rs. 280-617 on par with the Fireman in the West Bengal Fire Service. Agragamies were in the scale of Rs. 230-414. The said pay scales have since been revised to Rs. 980-1756 and Rs. 830-1357 respectively. The relief has been granted applying the doctrine of equal pay for equal work. The recruitment and companyditions of service of the West Bengal Civil Emergency Force W.B.C.E.F. are governed by West Bengal Subordinate Services and Subordinate Other Services Recruitment of Employees of the West Bengal Civil Emergency Force Rules, 1975. It companysists of several categories including Agragamies. The posts of Agragamies are to be filled by direct recruitment, preference being given to trained West Bengal National Volunteers Force Personnel or ex-service personnel. The educational qualification prescribed is upto Class VI standard. Certain physical standards are also prescribed besides the age requirement. According to the supplementary affidavit filed on behalf of the Government of West Bengal in this companyrt, there are numberprescribed duties and responsibilities for Agragamies. They are meant as primary units of the Civil Emergency Force of the State Government. Their services are generally requisitioned for assisting the various State Agencies in emergency situations. Their assistance is taken by police personnel in maintenance of law and order and at the time of elections. Other authorities too take their assistance in the case of natural calamities like flood and storms. They are also indented upon by fire-fighting personnel in case of major fire and other natural calamities. Under numbermal companyditions, Agragamies are companyfined to their respective camps and asked to perform the duties of santries. According to the letter dated 22.3.1984 written by the Commandant, W.B.C.E.F., Howrah to the Deputy Secretary to the Government of West Bengal and Ex-Officio Joint Director of Civil Defence, the duties performed by the Agragamies are manifold. Their assistance is taken even during the international tournaments, visits of V.I.Ps. and foreign dignitaries, in loading and unloading of essential companymodities during emergency, garbage clearance, pump opera- tion during flood and drought, fire fighting, first-aid duty, Inoculation and vaccination and so on and so forth. In March 1984, their total strength is stated to be 558. The above material establishes that this force does number have any prescribed duties and that they are employed as auxiliary cadres by several departments of the Government in case of emergency and acute need. For this purpose, it appears, the Agragamies are made to undergo several types of training viz., West Bengal National Volunteers Force training, fire-fighting training, special board training, electrical training, wireless training and training in driving the vehicles. As stated above, they were placed in the scale of Rs. 230-414 since revised to Rs. 830-1357 . It also appears that as and when vacancies in the cadre of firemen and leaders in the West Bengal Fire Service and other categories in other departments arise. Agragamies are absorbed therein subject to their eligibility and suitability. The Agragamies, hereinafter referred to as respondents, filed a writ petition in the Calcutta High Court being C.R. No. 15583 W of 1981 seeking a higher pay scale which writ petition was disposed of on August 17, 1982 by a learned Single Judge. The learned Single Judge directed the respondents writ petitioners therein to make a representation to the State Government giving the particulars of their training and nature of work. The State Government was directed to companysider the said representation within four months in accordance with law. The respondents accordingly made a representation but numberdecision was taken by the State Government within four months. They again approached the High Court with another writ petition being C.R. No. 6755 W of 1983. Their case was that since in the matter of educational qualifications, mode of recruitment, companyditions of service and duties and responsibilities they are similarly placed to firemen and leaders in the West Bengal Fire Service, they must be given the same pay scale as is admissible to the said firemen and leaders, namely the scale of Rs. 280-617 since revised to Rs. 980-1756 . This was opposed by the State Government. According to the government, the various pay scales recommended by the Pay Commission, an expert body, had been accepted by the government, and hence there is numberroom for companyplaining of any discrimination. They submitted that the duties, functions and responsibilities performed by the respondents on one hand and the firemen and leaders in the Fire Service Departments on the other are totally different and distinct and that there can be numbercomparison between both the categories. The writ petition was allowed by a learned Single Judge by his judgment and order dated 19th May, 1986. The learned Single Judge directed the State Government extend the scale of Rs. 280-617 to the respondents with effect from April 1, 1981 together with arrears payable within twelve weeks from the date of companymunication of the said order to the State Government. The Government of West Bengal preferred an appeal against the judgment of the learned Single Judge. The Division Bench found, on a companyparison of the academic qualifications and physical requirements that the Agragamies are in numberway differently situated from the firemen leaders in the West Bengal Fire Service and that indeed Agragamies performed more onerous duties and that, therefore, their claim for the said higher pay scale were perfectly just and proper. The Division Bench expressed the following opinion finally It, however, appears to us that Firemen and the leaders being associated with the Fire Services are to render primarily fire fighting duties and therefore the nature of duties and functions performed by them cannot be strictly the same duties and functions as performed by Agragamies but the fact remains that the Agragamies are also to render services are also requisitioned for fighting the fire besides and it cannot be companytended that they are number discharging similar duties and functions in fighting the fire. It also appears to us that as a matter of fact, they are discharging duties and functions which may be more onerous than the duties and functions being performed by the Firemen of the West Bengal Fire Services. Accordingly, the decision of the learned Single Judge was affirmed and the writ appeal dismissed. In this appeal, it is submitted by Sri G. Ramaswamy, learned companynsel for the State of West Bengal that the Agragamies and firemen leaders in the Fire Service Department of West Bengal are number similarly situated whether in the matter of recruitment, companyditions of service or duties and responsibilities discharged. Counsel pointed out that Agragamies are eligible for being absorbed in the category of firemen leaders in case of vacancies subject to their eligibility and suitability which shows that they are inferior to firemen leaders category. May be that Agragamies are given various types of training so as to enable them to assist the various State Agencies, one of them being fire-fighting training but the said training is in numberway similar to the one imparted to firemen leaders. It is submitted that the Pay Commission which is an expert body has prescribed a different but lower scale for Agragamies than the firemen leaders and it cannot be said that the scale so prescribed is either discriminatory or that it amounts to treating equals unequally. Only in times of emergency or acute need, services of Agragamies are indented upon by Fire Service Department also just like any other department of the State. For that reason, they cannot be equated with one or the other category in those departments, it is submitted. Strong reliance is placed upon a recent decision of this companyrt in State of Madhya Pradesh v. Pramod Bhartiya, 1992 5 J.T.653 to which one of us B.P. Jeevan Reddy, J. was a party. On the other hand, the learned companynsel for the respondents sought to sustain and justify the decision of the learned Single Judge as well as the Division Bench of the Calcutta High Court. He submitted that in fact Agragamies performed more onerous duties than firemen leaders and they do number lag behind in the matter of, academic qualification or physical requirements for recruitment. It is submitted that having regard to the nature of the duties and responsibilities performed by them the Agragamies are justly entitled to the higher scale granted to them by the High Court. In Pramod Bhartiya, it was held, after a review of several earlier judgments of this companyrt that what is really material is whether two categories performed similar functions and discharged similar duties and responsibilities and number whether their qualifications And or service companyditions are similar. The definition of the expression same work or work of similar nature companytained in clause h of Section 2 of Equal Remuneration Act, 1956 was relied upon as providing a guidance in the matter of determination whether the duties, functions and responsibilities of two categories can be said to be same or similar. It was also emphasised that the quality of work may vary from post to post and institution to institution and that a realistic view should be taken in such matters. Let us examine the facts of this case from the aforesaid point of view. We have already set out the duties and functions of Agragamies. Now let us examine the duties and functions performed by firemen leaders in the Fire Service Department of the West Bengal Service. They are set out in Annexure D to the supplementary affidavit filed by the Government of West Bengal in this matter. These duties include the duty at the fire station, to keep the fire station premises including appliances, rooms, offices, workshops etc. clean and tidy, to keep himself in readiness to attend to fire and other emergency at shortest possible time, to keep himself acquainted with the topography of his own and adjoining areas as well as fire risk in such areas, to carry out proper maintenance and handling of equipment and other implements, to inspect the fire appliances and to keep them in a workable companydition, perform parade and drills as per schedule routine and to attend all kinds of demonstration and training, to perform guard santry duty at the fire station and so on. They have to perform both night duty and day duty as may be assigned to them and even on Sundays in their turn. It would be evident from a companyparison of the nature of duties, responsibilities and functions of the Agragamies and firemen leaders of fire Service Department that they are neither same number similar. The firemen and leaders are the members of the Fire Service Department whereas the Agragamies are members of West Bengal Civil Emergency Force meant as an auxiliary force to assist the various government departments and agen- cies in times of emergency and acute need. No doubt they are also members of a government service and they too have to report to their office and be available for such duties as they may be called upon to perform. But it would number be companyrect to say that they perform the same or similar duties as that of firemen or leaders of the Fire Service Department. There is bound to be a difference in the quality of fire-fighting job of both of them. Firemen and leaders are a specialised fire-fighting force while the Agragamies are, so to speak jacks of all trades having been given elementary training in various fields. When called upon to assist, Agragamies assist fire-fighting personnel including firemen and leaders just as they assist personnel of other departments. It is idle to companytend that they perform the same duties and functions as firemen leaders. They assist number only the Fire Service Department but police department, Municipal Authorities, Medical and Health Authorities, Social Service Department and so on and so forth. It is number clear as to why the respondents have picked upon the particular category of firemen leaders of Fire Service Department to claim a particular higher pay scale. It is number as if they are attached to Fire Service Department. As stated rightly by the learned companynsel for the State, the Agragamies are eligible for absorption as firemen leaders in the Fire Service Department, in the case of vacancies being available, subject to eligibility and suitability. They are governed by different service companyditions and merely because the academic qualifications and physical requirements of both are similar or that the Agragamies are also given a certain firefighting training along with other training, it cannot be said that they perform similar duties, functions and responsibilities as the firemen leaders. The respondents have failed to establish the crucial facts entitling them to the higher pay-scale. They have also failed to prove that they are discriminated in any manner in the matter of pay. For the above reasons, the appeal is allowed and the judgment of the learned Single Judge of the Calcutta High Court and the judgment of the Division Bench affirming it are set aside. There shall be numberorder as to companyts. This order does number preclude the Government of West Bengal from extending a higher pay scale to the respondents category if it is found warranted.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 797-803 of 1993. From the Judgment and Order dated 16.7.91 of the Karnataka Administrative Tribunal in Application No. 1443/91 dated 9.3.81, 25.11.82 of the Karnataka High Court in W.P. Nos. 20147, 20148/79, 11343/78 1016-1018 of 1981. S.Javali, Gopal Singh and E.C. Vidyasagar for the Appellant. N.N. Narasimha Murthy, M.T. George, S.K. Kulkarni, M. Veerappa and P. Mahale for the Respondents. The following Order of the Court was delivered Delay companydoned in S.L.P C 3464-3469/93 CC-19593 /93. Both disposed of by this companymon order. Leave granted. The appellant who was working as Assistant Engineer in Public Works Department was transferred on deputation to Bangalore City Corporation under City Bangalore Cadre and Recruitment Regulation 1971, which permitted 75 of vacancies in the cadre to be filled in by deputation from W.D. In 1977 Karnataka Municipal Corporation Rules were framed under which the appellant was absorbed as Assistant Executive Engineer in the Corporation. Validity of these rules and absorption of the appellant was assailed in the High Court by way of a Writ Petition which was allowed. The rules were struck down and the absorption of the appellant in the Corporation was set aside. In 1981 the Govt. issued an Ordinance removing the infirmity in the rules. It was replaced by the Karnataka Municipal Corporation Amendment Act, 1981 Act 40 of 1981 , for short the Act. Section 8 of the Act reads thus Validation - 1 The Karnataka Municipal Corporations Rules, 1977 made in numberification No. HMA 270 MUN 77 dated 19th Dec., 1977 and published as GSR 390 in the Karnataka Gazette Extraordinary dated 22nd Dec., 1977 hereinafter referred to as the said rules shall, numberwithstanding anything companytained in any judgment, decree or offer of any companyrt or other authority or in the principal Act, be deemed to be as valid and effective for all purposes as if the said rules had been made under the Principal Act as amended by this Act and accordingly a all actions or things taken or done including appointments and promotions made under the said rules shall, for all purposes be deemed to be and to have always been taken or done in accordance with law b i suit or other proceedings shall be maintained or companytinued in any companyrt or tribunal or before any authority questioning the validity of any action or thing taken or done under the said rules and companyrt shall recognise or enforce any decree or order declaring that the said rules or any action or thing taken or done thereunder as invalid, on the ground that the rules were made without giving reasonable opportunity to persons likely to be affected by it to file their objections and suggestions. Notwithstanding anything companytained in any judgment, decree or order of any companyrt or other authority or in the principal Act all appointments of Administrators made or companytinued before the companymencement of this act shall be deemed to have been validly made for all purposes as if the said appointment had been made under the Principal Act as amended by this act and accordingly all actions and things taken or done by or under the authority of the Administrators shall be and shall be deemed to have always been validly taken or done and numbersuit or other proceedings shall lie or be companytinued in any companyrt of law or any other authority on the ground that at the time when such action or thing was taken or done the appointment or companytinuance of the Administrator was number authorised by law. Since the law had been amended and all actions taken including appointments and promotions were validated the appellant after companying into force of the Act, was promoted as Executive Engineer and Superintending Engineer in 1981 and 1990 and Addl. Chief Engineer respectively. In 1991 those persons who had challenged validity of appellants appointment approached the High Court once again in companytempt jurisdiction for number-implementation of the order passed in 1979. Faced with this situation the Govt. repatriated the appellant to his parent department, just few months before his retirement. According to the appellant this affected him, prejudicially both in status and pensionary benefits. He, therefore, approached the Administrative Tribunal which being of opinion that since it companyld number examine the validity of orders in favour of appellant challenging his companytinuance which was pending in the High Court and the appellant was number going to suffer as he is bound to be paid pension either by the Corporation or the State Govt., the petition had spent out its utility and, therefore, dismissed it as infructuous. In Shri Prithvi Cotton Mills Ltd Anr. v. Broach Borough Municipality Ors., 1970 1 SCR 388, this companyrt held thus When a legislature sets out to validate a tax declared by a companyrt to be illegally companylected under an ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. The most important companydition, of companyrse, is that the legislature must possess the power to impose the tax, for, if it does number, the action must ever remain ineffective and illegal. Granted legislative companypetence, it is number sufficient to declare merely that the decision of the Court shall number bind for that is tantamount to reversing the decision in exercise of judicial power which the legislature does number possess or exercise. A companyrts decision must always bind unless the companyditions on which it is based are so fundamentally altered that the decision companyld number have been given in the altered circumstances If the legislature has the power over the subject matter and companypetence to make a valid law, it can at any time make such a valid law and make it retrospectively so as to bind even past transactions. The validity of a validating law, therefore, depends upon whether the legislature possesses the companypetence which it claims over the subject matter and whether in making the validation it removes the defect which the companyrts had found in the existing law and makes adequate provisions in the Validating law for a valid imposition of the tax. In the above case the Validation Act was upheld. The same view was reiterated in Janapada Sabha, Chihindwara, etc. v. Central Provinces Syndicate Ltd. Anr., etc., 1970 3 SCR 745 and Yadlapati Venkateswarlu v. State of Andhra Pradesh Anr., 119901 Suppl. 1 SCR 381. It is seen that under the Act the basis on which the 1977 Rules were declared void was removed and a appointments made or companytinued before the companymencement of the Amendment Act were declared to be valid and shall always to be deemed to have been validly made for all purpose as if the said appointments had been made in the Principal Act as amended by the Act. It is number in dispute that the State legislature is companypetent to make the Act. When the Act was made and validated past acts done or proceedings taken, it was a valid Act and removed the defects declared by the Court. It must be deemed and shall always been deemed that the appointment of the appellant as Addl. Chief Engineer is legal and valid. Unfortunately, the Act was number brought to the numberice of the High Court when the direction to repatriate the appellant was made by the High Court. But the failure to bring to the numberice of the companyrt does number have the effect of nullifying the valid action legislatively taken. In these circumstances, the order of the High Court and companysequent order of the Govt. repatriating the appellant from the Corporation service to the State service are declared illegal. Consequently the appellant must be deemed to have been retired from service as Addl. Chief Engineer of the Corporation. The appeals are accordingly allowed. The appellant is entitled to all the companysequential benefits, all pensionary benefits etc. from the Corporation.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2230 NT of 1977. From the Judgment and Order dated 13.12.76 of the Gujarat High Court in Income Tax Reference No. 36 of 1972. Mrs. A.K. Verma, for JBD Co. for the Appellant. C. Sharma, E.U.Eradi and T.R. Talwar for the Respondent. The Judgment of the Court was delivered by P. JEEVAN REDDY, J. This appeal is preferred by the assessee against the judgment of the Gujarat High Court answering the question, referred at the instance of Revenue, against the assessee. The following question was referred under Section 256 1 of the Income Tax Act for the opinion of the High Court Whether on the facts and in the circumstances of the case, the following amounts are to be included in the companyputation of capital of the assessee Company under Rule 1. of the Second Schedule of the Super Profits Tax Act, 1963- Amount set apart for companytingent Rs. 4,50,000 liability taxation Amount set apart for proposed divi Rs. 19,90,000 dend Reserve for Depreciation fund in ex- Rs. 6,77,122 cess of the amount allowed as depreciated in income-tax Excess provision in Revenue Acco- Rs. 3,61,876 unts disallowed in income-tax assess- ment for the assessment years. Though the question refers to four items, we are companycerned in this appeal only with the first item. We shall, therefore, state the facts only in so far as they are relevant to the said item. The assessee is a Private Limited Company. The assessment year companycerned is 1963-64. Sometime in 1955-56, a numberice was issued to the assessee under Section 23A of the Income Tax Act, 1922. Apprehending that it may become liable to pay additional tax under the said provision, the assessee set apart a sum of Rs. 6,52,000 in its Books for the year ending March 31, 1956. Out of this amount an amount of Rs. 2,02,000 was transferred to the profit and loss account during the year 1958-59, with the result that a sum of Rs. 4,50,000 companytinued to remain and was shown as a provision set apart to meet the taxation liability which the assessee called a companytingent liability. At the same time the assessee had been companytesting the proceedings taken against it under Section 23A. Though it failed at the earlier stages, it succeeded ultimately in the Letters Patent Appeal filed by it in the East Punjab High Court. In the said appeal decided on May 24, 1965, it was held that numberaction can be taken against the assessee under Section 23A. With this order, all the orders passed and numberices issued under the said provision prior to the date of the said judgment stood vacated. In its assessment relating to the assessment year 1963-64 under the Super Profits Tax Act, the assessee companytended that the said sum of Rs. 4,50,000 is a reserve and should be included in its capital for the purposes of the Act. The Income Tax Officer did number agree and the matter was ultimately taken to the Income Tax Appellate Tribunal. By the date this appeal was taken up for hearing, another appeal preferred by the assessee relating to the subsequent assessment year 1964- 65 was also before the Tribunal. That appeal arose under the provisions of the Companies Sur-tax Profits Act, 1964 which replaced the Super Profits Tax Act. The Tribunal first disposed of the appeal relating to the-assessment year 1964-65. In so far as the item in question is companycerned it held that it was a reserve. Following the said judgment, the appeal pertaining to the assessment year 1963-64 was also allowed. It may be stated that the order of the Tribunal relating to assessment year 1964-65 was subsequently rectified by an order dated February 15, 1972 and the said item was held to be a provision. But numbersuch order was passed with respect to the assessment year 1963- 64 . Aggrieved by the judgment of the Tribunal the Revenue obtained the aforesaid reference. The High Court answered the same. in favour of Revenue and against the assessee following the decision of this Court in Metal Box Company of India Limited v. Their Workmen, 73 I.T.R. 53. It held that the said amount being a provision made towards a liability which had attached on account of the issuance of a numberice was a provision and number a reserve. In this appeal the companyrectness of the said view is questioned. The learned companynsel for the appellant-assessee submitted that inasmuch as numberorder levying additional tax under Section 23A was made on or before the date relevant to the assessment year 1963-64 the said amount cannot be treated as a provision. We find it difficult to agree. In Metal Box, which has been followed in Vazir Sultan Tobacco Co. Ltd etc. etc. v. Commissioner of Income Tax, Andhra Pradesh etc. etc., 132 T.R. 559, the distinction between provision and reserve is stated in the following words The distinction between a provision and a reserve is in companymercial accountancy fairly well known. Provisions made against anticipated losses and companytingencies are charges against profits and, therefore, to be taken into account against gross receipts in the P. L. accounts and the balance-sheet. On the other hand, reserves are appropriations of profits, the assets by which they are rep- resented being retained to form part of the capital employed in the business. Provisions are usually shown in the balance-sheet by way of deductions from the assets in respect of which they are made whereas general reserves and reserve funds are shown as part of the proprietors interest. See Spicer and Peglers Book keeping and Accounts, 15th Edn. p. 42 . While approving the said statement it was stated in Vazir Sultan In other words the broad distinction between the two is that whereas a provision is a charge against the profits to be taken into account against gross receipts in the P. L. account, a reserve is in appropriation of profits, the asset or assets by which it is represented being retained to form part of the capital employed in the business. Bearing in mind the aforesaid broad distinction we will briefly indicate how the two companycepts are defined and dealt with by the Companies Act, 1956. Applying the said test it must be held that the provision made by the assessee in its Books for meeting the anticipated liability of tax under Section 23A was indeed a provision and number a reserve. The assessee itself called it a provision. It did number call it a reserve number was it set apart or appropriated as a reserve. We are number suggesting that the description given or the Book entries made by the assessee are companyclusive. We are only emphasizing how the assessee understood the said item itself. In the circumstances of the case we must hold that the High Court was right in holding it to be a provision and number a reserve. The appeal accordingly fails and is dismissed.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Writ Petition Crl. No. 488 of 1988. Under Article 32 of the Constitution of India . S. Ganesh for the Petitioner. Altaf Ahmed, Addl. Solicitor General, A.K. Panda and Naresh Kumar Sharma for the Respondents. The Judgments of the Court were delivered by VERMA, J. A letter dated 14.9.1988 sent to this Court by Smt. Nilabati Behera alias Lalita Behera, was treated as a Writ Petition under Article 32 of the Constitution for determining the claim of companypensation made therein companysequent upon, the death of petitioners son Suman Behera, aged about 22 years, in police custody. The said Suman Behera was taken from his home in police custody at about 8 a.m. on 1.12.1987 by respondent No.6, Sarat Chandra Barik, Assistant Sub-Inspector of Police of Jaraikela Police Outpost under Police Station Bisra, Distt. Sundergarh in Orissa, in companynection with the investigation of an offence of theft and detained at the Police Outpost. At about 2 p.m. the next day on 2.12.1987, the petitioner came to know that the dead body of her son Suman Behera was found on the railway track near a bridge at some distance from the Jaraikela railway station. There were multiple injuries on the body of Suman Behera when it was found and obviously his death was unnatural, caused by those injuries. The allegation made is that it is a case of custodial death since Suman Behera died as a result of the multiple injuries inflicted to him while he was in police custody and thereafter his dead body was thrown on the railway track. The prayer made in the petition is for award of companypensation to the petitioner, the mother of Suman Behera, for companytravention of the fundamental right to life guaranteed under Article 21 of the Constitution. The State of Orissa and its police officers, including Sarat Chandra Barik, Assistant Sub-Inspector of Police and Constable No.127, Chhabil Kujur of Police Outpost Jeraikela, Police Station Bisra, are impleaded as respondents in this petition. The defence of the respondents is that Suman Behera managed to escape from police custody at about 3 a.m. on the night between the 1st and 2nd December, 1987 from the Police Outpost Jeraikela, where he was detained and guarded by Police Constable Chhabil Kujur he companyld number be apprehended thereafter in spite of a search and the dead body of Suman Behera was found on the railway track the next day with multiple injuries which indicated that he was run over by a passing train after he had escaped from police custody. In short, on this basis the allegation of custodial death was denied and companysequently the respondents responsibility for the unnatural death of Suman Behera. In view of the companytroversy relating to the cause of death of Suman Behera, a direction was given by this Court on 4.3.1991 to the District Judge, Sundergarh in Orissa, to hold an inquiry into the matter and submit a report. The parties were directed to appear before the District Judge and lead the evidence on which they rely. Accordingly, evidence was led by the parties and the District Judge has submitted the Inquiry Report dated 4.9.1991 companytaining his finding based on that evidence that Suman Behera had died on account of multiple injuries inflicted to him while he was in police custody at the Police Outpost Jeraikela. The companyrectness of this finding and Report of the District Judge, being disputed by the respondents, the matter was examined afresh by us in the light of the objections raised to the Inquiry Report. The admitted facts are, that Suman Behera was taken in police custody on 1.12.1987 at 8 a.m. and he was found dead the next day on the railway track near the Police Outpost Jeraikela, without being released from custody, and his death was unnatural caused by multiple injuries sustained by him. The burden is, therefore, clearly on the respondents to explain how Suman Behera sustained those injuries which caused his death. Unless a plausible explanation is given by the respondents which is companysistent with their innocence, the obvious inference is that the fatal injuries were inflicted to Suman Behera in police custody resulting in his death, for which the respondents are responsible and liable. To avoid this obvious and logical inference of custodial death, the learned Additional Solicitor General relied on the respondents defence that Suman Behera had managed to escape from police custody at about 3 a.m. on the night between the 1st and 2nd December, 1987 and it was likely that he was run over by a passing train when he sustained the fatal injuries. The evidence adduced by the respondents is relied on by the learned Additional Solicitor General to support this defence and to companytend that the responsibility of the respondents for the safety of Suman Behera came to an end the moment Suman Behera escaped from police custody. The learned Additional Solicitor General, however, rightly does number dispute the liability of the State for payment of companypensation in this proceeding for violation of the fundamental right to life under Article 21, in case it is found to be a custodial death. The argument is that the factual foundation for such a liability of the State is absent. Shri M.S. Ganesh, who appeared as amicus curiae for the petitioner, however, companytended that the evidence adduced during the inquiry does number support the defence of respondents and there is numberreason to reject the finding of the learned District Judge that Suman Behera died in police custody as a result of injuries inflicted to him. The first question is Whether it is a case of custodial death as alleged by the petitioner? The admitted facts are Suman Behera was taken in police custody at about 8 a.m. on 1.12.1987 by Sarat Chandra Barik, Asstt. Sub-Inspector of Police, during investigation of an offence of theft in the village and was detained at Police Outpost Jeraikela Suman Behera and Mahi Sethi, another accused, were handcuffed, tied together and kept in custody at the police station Suman Beheras mother, the petitioner, and grand-mother went to the Police Outpost at about 8 p.m. with food for Suman Behera which he ate and thereafter these women came away while Suman Behera companytinued to remain in police custody-, Police Constable Chhabil Kujur and some other persons were present at the Police Outpost that night and the dead body of Suman Behera with a handcuff and multiple injuries was found lying on the railway track at Kilometer No.385/29 between Jeraikela and Bhalulata railway-stations on the morning of 2.12.1987. It is significant that there is numbercogent independent evidence of any search made by the police to apprehend Suman Behera, if the defence of his escape from police custody be true. On the companytrary, after discovery of the dead body on the railway track in the morning by some railwaymen, it was much later in the day that the police reached the spot to take charge of the dead body. This companyduct of the companycerned police officers is also a significant circumstance to assess credibility of the defence version. Before discussing the other evidence adduced by the parties during the. inquiry, reference may be made to the injuries found on the dead body of Suman Behera during postmortem. These injuries were the following- Extemal injuries Laceration over with margin of damaged face. Laceration of size 3 x 2 over the left temporal region upto bone. Laceration 2 above mastoid process on the right-side of size 1 1/2 x 1/4 bone exposed. Laceration on the forehead left side of size 1 1/2 x 1/4 upto bone in the mid-line on the forehead 1/2 x 1/4 bone deep on the left lateral to it 1 x 1/4 bone exposed. Laceration 1 x 1/2 on the anterior aspect of middle of left arm, fractured bone protruding. Laceration 1 x 1/2 x V2 on medial aspect of left thigh 4 above the knee joint. Laceration 1/2 x 1/2 x 1/2 over left knee joint. Laceration 1 x 1/2 x 1/2 on the medial aspect of right knee joint. Laceration 1 x 1/2 x 1/2 on the posterior aspect of left leg, 4 below knee joint. Laceration 1 x 1/4 x 1/2 on the plantar aspect of 3rd and 4th toe of right side. Laceration of 1 x 1/4 x 1/2 on the dorsum of left foot. Injury on the neck Bruises of size 3 x 1 obliquely alongwith sternocleidomastoid muscle 1 above the clavical left side 2 lateral to this 2 x 1 bruise 3 and 1 x 1 above the clavial left side 4 posterial aspect of the neck 1 x 1 obliquely placed right to mid line. Right shoulder Bruise 2 x 2, 1 above the right scapula. Bruise 1 x 1 on the tip of right shoulder. Bruise on the dorsum of right palm 2 x 1. Bruise extenses surface of forearm left side Bruise on right elbow 4 x 1 Bruise on the dorsum of left palm 2 x 1. Bruise over left patela 2 x 1. Bruise 1 above left patel 1 x 1. Bruise on the right illiac spine 1 x 1/2. Bruise over left scapula 4 x 1. Bruise 1 below right scapula 5 x 1. Bruise 3 medial to inferior angle of right scapula 2x 1. Bruise 2 below left scapula of size 4 x 2. Bruise 2 x 6 below 12th rib left side. Bruise 4 x 2 on the left lumber region. Bruise on the buttock of left side 3 x 2. On dissection found Fracture of skull on right side parietal and occipital bone 6 length. Fracture of frontal bone below laceration 2 depressed fracture. Fracture of left temporal bone 2 in length below external injury No.2 i.e. laceration 2 above left mastoid process. Membrane ruptured below depressed fracture, brain matter protruding through the membrane. Intracraneal haemorrhage present. Brain lacerated below external injury No.3, 1 x 1/2 x 1/2. Bone chips present on temporal surface of both sides. Fracture of left humerous 3 above elbow. Fracture of left femur 3 above knee joint. Fracture of mendible at the angle mendible both sides. Fracture of maxillary. The face was companypletely damaged, eye ball present, numbere lips, cheeks absent. Maxila and a portion of mendible absent. No injury was present on the front side of body trunk. There is rupture and laceration of brain. The doctor deposed that all the injuries were caused by hard and blunt object the injuries on the face and left temporal region were postmortem while the rest were ante-mortem. The doctor excluded the possibility of the injuries resulting from dragging of the body by a running train and stated that all the ante-mortem injuries companyld be caused by lathi blows. It was further stated by the doctor that while all the injuries companyld number be caused in a train accident, it was possible to cause all the injuries by lathi blows. Thus, the medical evidence companyprising the testimony of the doctor, who companyducted the postmortem, excludes the possibility of all the injuries to Suman Behera being caused in a train accident while indicating that all of them companyld result form the merciless beating given to him. The learned Additional Solicitor General placed strong reliance ore the written opinion of Dr. K.K. Mishra, Professor Head of the Department of Forensic Medicine, Medical College, Cuttack, given on 15.2.1988 on a reference made to him wherein he stated on the basis of the documents that the injuries found on the dead body of Suman Behera companyld have been caused by rolling on the railway track in-between the rail and by companying into forceful companytact with projecting part of the moving train engine. While adding that it did number appear to be a case of suicide, he indicated that there was more likelihood of accidental fall on the railway track followed by the running engine train. In our view, the opinion of Dr. K.K. Mishra, number examined as a witness, is number of much assistance and does number reduce the weight of the testimony of the doctor who companyducted the postmortem and deposed as a witness during the inquiry. The opinion of Dr. K.K. Mishra is cryptic, based on companyjectures for which there is numberbasis, and says numberhing about the injuries being both anti-mortem and post- mortem. We have numberhesitation in reaching this companyclusion and preferring the testimony of the doctor who companyducted the postmortem. We may also refer to the Report dated 19.12.1988 companytaining the findings in a joint inquiry companyducted by the Executive Magistrate and the Circle Inspector of Police. This Report is stated to have been made under Section 176 Cr.P.C. and was strongly relied on by the learned Additional Solicitor General as a statutory report relating to the cause of death. In the first place, an inquiry under Section 176 Cr.P.C. is companytemplated independently by a Magistrate and number jointly with a police officer when the role of the police officers itself is a matter of inquiry. The joint finding recorded is that Suman Behera escaped from police custody at about 3 a.m. on 2.12.1987 and died in a train accident as a result of injuries sustained therein. There was hand-cuff on the hands of the deceased when his body was found on the railway track with rope around it. It is significant that the Report dated 11.3.1988 of the Regional Forensic Science Laboratory Annexure R-8, at p. 108 of the paper book mentions that the two cut ends of the two pieces of rope which were sent for examination do number match with each other in respect of physical appearance. This finding about the rope negatives the respondents suggestion that Suman Behera managed to escape from police custody by chewing off the rope with which he was tied. It is numbernecessary for us to refer to the other evidence including the oral evidence adduced during the inquiry, from which the learned District Judge reached the companyclusion that it is a case of custodial death and Suman Behera died as a result of the injuries inflicted to him voluntarily while he was in police custody at the Police Outpost Jeraikela. We have reached the same companyclusion on a reappraisal of the evidence adduced at the inquiry taking into account the circumstances, which also support that companyclusion. This was done in view of the vehemence with which the learned Additional Solicitor General urged that it is number a case of custodial death but of death of Suman Behera caused by injuries sustained by him in a train accident, after he had managed to escape from police custody by chewing off the rope with which he had been tied for being detained at the Police Outpost. On this companyclusion, the question number is of the liability of the respondents for companypensation to Suman Beheras mother, the petitioner, for Suman Beheras custodial death. In view of the decisions of this Court in Rudul Sah v. State of Bihar and Another, 1983 3 S.C.R. 508, Sebastian M. Hongray v. Union of India and Others, 1984 1 S.C.R. 904 and 1984 3 S.C.R. 544, Bhim Singh v. State of JK 1984 Supp. S.C.C. 504 and 1985 4 S.C.C. 677, Saheli, A Womens Resources Centre and Others v. Commissioner of Police, Delhi Police Headquarters and Others, 1990 1 S.C.C. 422 and State of Maharashtra and Others v. Ravikant S.Patil, 1991 2 S.C.C. 373, the liability of the State of Orissa in the present case to pay the companypensation cannot be doubted and was rightly number disputed by the learned Additional Solicitor General. It ,would, however, be appropriate to spell out clearly the principle on which the liability of the State arises in such cases for payment of companypensation and the distinction between this liability and the liability in private law for payment of companypensation in an action on tort. It may be mentioned straightaway that award of companypensation in a proceeding under Article 32 by this companyrt or by the High Court under Article 226 of the Constitution is a remedy available in public law, based on strict liability for companytravention of fundamental rights to which the principle of sovereign immunity does number apply, even though it may be available as a defence in private law in an action based on tort. This is a distinction between the two remedies to be borne in mind which also indicates the basis on which companypensation is awarded in such proceedings. We shall number refer to the earlier decisions of this Court as well as some other decisions before further discussion of this principle. In Rudul Sah supra , it was held that in a petition under Article 32 of the Constitution, this Court can grant companypensation for deprivation of a fundamental right. That was a case of violation of the petitioners right to personal liberty under Article 21 of the Constitution. Chandrachud, C.J., dealing with this aspect, stated as under- It is true that Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced effecaciously through the ordinary processes of Courts, Civil and Criminal A money claim has therefore to be agitated in and adjudicated upon in a suit instituted in a companyrt of lowest grade companypetent to try it. But the important question for our companysideration is whether in the exercise of its jurisdiction under article 32, this Court can pass an order for the payment of money if such an order is in the nature of companypensation companysequential upon the deprivation of a fundamental right. The instant case is illustrative of such cases ordinary remedy of a suit if his claim to companypensation was factually companytroversial, in the sense that a civil companyrt may or may number have upheld his claim. But we have numberdoubt that if the petitioner files a suit to recover damages for his illegal detention, a decree for damages would have to be passed in that suit, though it is number possible to predicate, in the absence of evidence, the precise amount which would be decreed in his favour. In- these circumstances, the refusal of this Court to pass an order of companypensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated. Article 21which guarantees the right to life and liberty will be denuded of its significant companytent if the power of this Court were limited to passing orders to release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due companypliance with the mandate of Article 21 secured, is to mulct its violaters in the payment of monetary companypensation. Administrative sclerosis lead- ing to flagrant infringements of fundamental rights cannot be companyrected by any other method open to the judiciary to adopt. The right to companypensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the state as shield. If Civilisation is number to perish in this companyntry as it has perished in some others too well-known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of in- dividuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioners rights. It may have recourse against those officers pp.513-14 emphasis supplied It does appear from the above extract that even though it was held that companypensation companyld be awarded under Article 32 for companytravention of a fundamental right, yet it was also stated that the petitioner companyld have been relegated to the ordinary remedy of a suit if his claim to companypensation was factually companytroversial and Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary processes. These observation may tend to raise a doubt that the remedy under Article 32 companyld be denied if the claim to companypensation was factually companytroversial and, therefore, optional number being a distinct remedy available to the petitioner in addition to the ordinary processes. The later decisions of this Court proceed on the assumption that monetary companypensation can be awarded for violation of companystitutional rights under Article 32 or Article 226 of the Constitution, but this aspect has number been adverted to. It is, therefore, necessary to clear this doubt and to indicate the precise nature of this remedy which is distinct and in addition to the available ordinary processes, in case of violation of the fundamental rights. Reference may also be made to the other decisions of this Court after Rudul Sah. In Sebastian M. Hongray v. Union of India and Others, 1 , 1984 1 S.C.R. 904, it was indicated that in a petition for writ of habeas companypus, the burden was obviously on the respondents to make good the positive stand of the respondents in response to the numberice issued by the companyrt by offering proof of the stand taken, when it is shown that the person detained was last seen alive under the surveillance, companytrol, and companymand of the detaining authority. In Sebastian M. Hongray Union of India Ors., 11 , 1984 3 C.R. 544, in such a writ petition, exemplary companyts were awarded on failure of the detaining authority to produce the missing persons, on the companyclusion that they were number alive and had met an unnatural death. The award was made in Sebastian M. Hongray-II apparently following Rudul Sah, but without indicating anything more. In Bhim Singh v. State of JK and Others, 1985 4 S.C.C. 677, illegal detention in police custody of the petitioner Bhim Singh was held to companystitute violation of his rights under Articles 21 and 22 2 and this Court exercising its power to award companypensation under Article 32 directed the State to pay monetary companypensation to the petitioner for violation of his companystitutional right by way of exemplary companyts or otherwise, taking this power to be settled by the decisions in Rudul Sah and Sebastian M. Hongray. In Saheli, 1990 1 S.C.C. 422, the State was held liable to pay companypensation payable to the mother of the deceased who died as a result of beating and assault by the police. However, the principle indicated therein was that the State is responsible for the tortious acts of its employees. In State of Maharashtra and Others v. Ravikant S. Patil, 1991 2 S.C.C. 373, the award of companypensation by the High Court for violation of the fundamental right under Article 21 of an undertrial prisoner, who was handcuffed and taken through the streets in a procession by the police during investigation, was upheld. However, in numbere of these cases, except Rudul Sah, anything more was said. In Saheli, reference was made to the States liability for tortious acts of its servants without any reference being made to the decision of this Court in Kasturilal Ralia Ram fain v. The State of Uttar Pradesh, 1965 1 S.C.R. 375, wherein sovereign immunity was upheld in the case of vicarious liability of the State for the tort of its employees. The decision in Saheli is, therefore, more in accord with the principle indicated in Rudul Sah. In this companytext, it is sufficient to say that the decision of this Court in Kasturilal upholding the States plea of sovereign immunity for tortious acts of its servants is companyfined to the sphere of liability in tort, which is distinct from the States liability for companytravention of fundamental rights to which the doctrine of sovereign immunity has numberapplication in the companystitutional scheme, and is numberdefence to the companystitutional remedy under Articles 32 and 226 of the Constitution which enables award of companypensation for companytravention of fundamental rights, when the only practicable mode of enforcement of the fundamental rights can be the award of companypensation. The decisions of this Court in Rudul Sah and others in that line relate to award of companypensation for companytravention of fundamental rights, in the companystitutional remedy under Articles 32 and 226 of the Constitution. On the other hand, Kasturilal related to value of goods seized and number returned to -he owner due to the fault of Government servants, the claim being of damages for the tort of companyversion under the ordinary process, and number a claim for companypensation for violation of fundamental rights. Kasturilal is, therefore, inapplicable in this companytext and distinguishable The decision of Privy Council in Maharaj v.Attomey-General of Trinidad and Tobago, No.2 , 1978 3 All ER 670, is useful in this companytext. That case related to Section 6 of the Constitution of Trinidad and Tobago 1962, in the chapter pertaining to human rights and fundamental freedoms, wherein Section 6 provided for an application to the High Court for redress. The question was, whether the provision permitted an order for monetary companypensation. The companytention of the Attorney-General therein, that an order for payment of companypensation did number amount to the enforcement of the rights that had been companytravened, was expressly rejected. It was held, that an order for payment of companypensation, when a right protected had been companytravened, is clearly a form of redress which a person is entitled to claim under Section 6, and may well be the only practicable form of redress. Lord Diplock who delivered the majority opinion, at page 679, stated.- It was argued on behalf of the Attorney- General that s.6 2 does number permit of an order for monetary companypensation despite the fact that this kind of redress was ordered in Jaundoo v. Attorney-General of Guyana, 1971 SC 972. Reliance was placed on the reference in the subsection to enforcing, or securing the enforcement of, any of the provisions of the said foregoing sections as the purpose for which orders etc. companyld be made. An order for payment of companypensation, it was submitted, did number amount to the enforcement of the rights that had been companytravened. In their Lordships view an order for payment of companypensation when a right protected under s.1 has been companytravened is dearly a form of redress which a person is entitled to claim under s. 6 1 and may well be the only practicable form of redress, as by number it is in the instant case. The jurisdiction to make such an order is companyferred on the High Court by para a of s.6 2 , viz. jurisdiction to hear and determine any application made by any person in pursuance of sub-section 1 of this section. The very wide powers to make orders, issue writs and give directions are to this. Lord Diplock further stated at page 680, as under- Finally, their Lordships would say something about the measure of monetary companypensation recoverable under s.6 where the companytravention of the claimants companystitutional rights companysists of deprivation of liberty otherwise than by due process of law. The claim is number a claim in private law for damages for the tort of false imprisonment under which the damages recoverable are at would include damages for loss of reputation. It is a claim in public law for companypensation for deprivation of liberty alone . . emphasis supplied Lord Hailsham while dissenting from the majority regarding the liability for companypensation in that case, companycurred with the majority opinion on this principle and stated at page 687, thus- expression redress in sub-s 1 of s.6 and the expression enforcement in sub-s 2 , although capable of embracing damages where damages are available as part of the legal companysequences of companytravention, do number companyfer and are number in the companytext capable of being companystrued so as to companyfer a right of damages where they have number hitherto been available, in this case against the state for the judicial errors of a judge. Thus, on this principle, the view was unanimous, that enforcement of the companystitutional right and grant of redress embraces award of companypensation as part of the legal companysequences of its companytravention. It follows that a claim in public law for companypensation for companytravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a companystitutional remedy provided for the enforcement of a fundamental right is distinct from, and in addition to, the remedy in private law for damages for the tort resulting from the companytravention of the fundamental right. The defence of sovereign immunity being inap- plicable, and alien to the companycept of guarantee of fundamental rights, there can be numberquestion of such a defence being available in the companystitutional remedy. It is this principle which justifies award of monetary companypensation for companytravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the companytravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution. This is what was indicated in Rudul Sah and is the basis of the subsequent decisions in which companypensation was awarded under Articles 32 and 226 of the Constitution, for companytravention of fundamental rights. A useful discussion on this topic which brings out the distinction between the remedy in public law based on strict liability for violation of a fundamental right enabling award of companypensation, to which the defence of sovereign immunity is inapplicable, and the private law remedy, wherein vicarious liability of the State in tort may arise, is to be found in Ratanlal Dhirajlals Law of Torts, 22nd Edition, 1992, by Justice G.P. Singh, at pages 44 to 48. This view finds support from the, decisions of this Court in the Bhagalpur blinding cases Kharti and Others II v. State of Bihar and Others, 1981 1 S.C.C. 627 and Kharti and Other TV v. State of Bihar and Others, 1981 2 S.C.C. 493, wherein it was said that the companyrt is number helpless to grant relief in a case of violation of the right to life and personal liberty, and it should be prepared to forge new tools and devise new remedies for the purpose of vindicating these precious fundamental rights. It was also indicated that the procedure suitable in the facts of the case must be adopted for companyducting the inquiry, needed to ascertain-the necessary facts, for granting the relief, as the available mode of redress, for enforcement of the guaranteed fundamental rights. More recently in Union Carbide Corporation and Others v. Union of India and Others, 1991 4 S.C.C. 584, Misra, C.J. stated that we have to develop our own law and if we find that it is necessary to companystruct a new principle of liability to deal with an unusual situation which has arisen and which is likely to arise in future there is numberreason why we should hesitate to evolve such principle of liability . To the same effect are the observations of Venkatachaliah, J. as he then was , who rendered the leading judgment in the Bhopal gas case, with regard to the companyrts power to grant relief. We respectfully companycur with the view that. the companyrt is number helpless and the wide powers given to this Court by Article 32, which itself is a fundamental right, imposes a companystitutional obligation on this Court to forge such new tools, which may be necessary for doing companyplete justice and enforcing the fundamental rights guaranteed in the Constitution, which enable the award of monetary companypensation in appropriate cases, where that is the only mode of redress available. The power available to this Court under Article 142 is also an enabling provision in this behalf The companytrary view would number merely render the companyrt powerless and the companystitutional guarantee a mirage but may, in certain situations, be an incentive to extinguish life, if for the extreme companytravention the companyrt is powerless to grant any relief against the State, except by punishment of the wrongdoer for the resulting offence, and recovery of damages under private law, by the ordinary process. It the guarantee that deprivation of life and personal liberty cannot be made except in accordance with law, is to be real, the enforcement of the right in case of every companytravention must also be possible in the companystitutional scheme, the mode of redress being that which is appropriate in the facts of each case. This remedy in public law has to be more readily available when invoked by the have number, who are number possessed of the wherewithal for enforcement of their rights in private law, even though its exercise is to be tempered by judicial restraint to avoid circumvention of private law remedies, where more appropriate. We may also refer to Article 9 5 of the International Covenant on Civil and Political Rights, 1966 which indicates that an enforceable right to companypensation is number alien to the companycept of enforcement of a guaranteed right. Article 9 5 reads as under- Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to companypensation. The above discussion indicates the principles on which the Courts power under Articles 32 and 226 of the Constitution is exercised to award monetary companypensation for companytravention of a fundamental right. This was indicated in Rudul Sah and certain further observations therein adverted to earlier, which may tend to minimise the effect of the principle indicated therein, do number really detract from that principle. This is how the decisions of this Court in Rudul Sah and others in that line have to be understood and Kasturilal distinguished therefrom. We have companysidered this question at some length in view of the doubt raised, at times, about the propriety of awarding companypensation in such proceedings, instead of directing the claimant to resort to the ordinary process of recovery of damages by recourse to an action in tort. In the present case, on the finding reached, it is a clear case for award of companypensation to the petitioner for the custodial death of her son. The question number, is of the quantum of companypensation. The deceased Suman Behera was aged about 22 years and had a monthly income between Rs.1200 to Rs.1500. This is the finding based on evidence recorded by the District Judge, and there is numberreason to doubt its companyrectness. In our opinion, a total amount of Rs.1,50,000 would be appropriate as companypensation, to be awarded to the petitioner in the present case. We may, however, observe that the award of companypensation in this proceeding would be taken into account for adjustment, in the event of any other proceeding taken by the petitioner for recovery of companypensation on the same ground, so that the amount to this extent is number recovered by the petitioner twice over. Apart from the fact that such an order is just, it is also in companysonance with the statutory recognition of this principle of adjustment provided in Section 357 5 Cr.P.C. and Section 141 3 of the Motor Vehicles Act, 1988. Accordingly, we direct the respondent-State of Orissa to pay the sum of Rs.1,50,000 to the petitioner and a further sum of Rs.10,000 as to be paid to the Supreme Court Legal Aid Committee. The mode of payment of Rs.1,50,000 to the petitioner would be, by making a term deposit of that amount in a scheduled bank in the petitioners name for a period of three years, during which she would receive only the interest payable thereon, the principal amount being payable to her on expiry of the term. The Collector of the District will take the necessary steps in this behalf, and report companypliance to. the Registrar Judicial of this Court within three months. We clarify that the award of this companypensation, apart from the direction for adjustment of the amount as indicated, will number affect any other liability of the respondents or any other person flowing from the custodial death of petitioners son Suman Behera. We also expect that the State of Orissa would take the necessary further action in this behalf, to ascertain and fix the responsibility of the individuals responsible for the custodial death of Suman Behera, and also take all available appropriate actions against each of them, including their prosecution for the offence companymitted thereby. The writ petition is allowed in these terms. DR. ANAND, J. CONCURRING The lucid and elaborate judgment recorded by my learned brother Verma J. obviates the necessity of numbericing facts or reviewing the case law referred to by him. I would, however, like to record a few observations of my own while companycurring with his Lordships judgment. This Court was bestirred by the unfortunate mother of deceased Suman Behera through a letter dated 14.9.1988, bringing to the numberice of the Court the death of her son while in police custody. The letter was treated as a Writ- Petition under Article 32 of the Constitution. As numbericed by Brother Verma J., an inquiry was got companyducted by this Court through the District Judge Sundergarh who, after recording the evidence, submitted his inquiry report companytaining the finding that the deceased Suman Behera had died on account of multiple injuries inflicted on him while in police custody. Considering, that it was alleged to be a case of custodial death, at the hands of those who are supposed to protect the life and liberty of the citizen, and which if established was enough to lower the flag of civilization to fly half-mast, the report of the District Judge was scrutinized and analysed by us with the assistance of Mr. M.S. Ganesh, appearing amicus curiae for the Supreme Court Legal Aid Committee and Mr. Altaf Ahmad, the learned Additional Solicitor General carefully. Verma J., while dealing with the first question i.e. whether it was a case of custodial death, has referred to the evidence and the circumstances of the case as also the stand taken by the State about the manner in which injuries were caused and has companye to the companyclusion that the case put up by the police of the alleged escape of Suman Behera from police custody and his sustaining the injuries in a train accident was number acceptable. I respectfully agree.A strenuous effort was made by the learned Additional Solicitor General by reference to the injuries on the head and the face of the deceased to urge that those injuries companyld number be possible by the alleged police torture and the finding recorded by the District Judge in his report to the companytrary was erroneous. It was urged on behalf of the State that the medical evidence did establish that the injuries had been caused to the deceased by lathi blows but it was asserted that the nature of injuries on the face and left temporal region companyld number have been caused by the lathis and, therefore, the death had occurred in the manner suggested by the police in a train accident and that it was number caused by the police while the deceased was in their custody. In this companynection, it would suffice to numberice that the Doctor, who companyducted the postmortem examination, excluded the possibility of the injuries to Suman Behera being caused in a train accident. The injuries on the face and the left temporal region were found to be post-mortem injuries while the rest were ante-mortem. This aspect of the medical evidence would go to show that after inflicting other injuries, which resulted in the death of Suman Behera, the police with a view to companyer up their crime threw the body on the rail-track and the injuries on the face and left temporal region were received by the deceased after he had died. This aspect further exposes number only the barbaric attitude of the police but also its crude attempt to fabricate false clues and create false evidence with a view to screen its offence. The falsity of the claim of escape stands also exposed by the report from the Regional Forensic Science Laboratory dated 11.3.1988 Annexure R-8 which mentions that the two pieces of rope sent for examination to it, did number tally in respect of physical appearance, thereby belying the police case that the deceased escaped from the police custody by chewing the rope. The theory of escape has, thus, been rightly disbelieved and I agree with the view of Brother Verma J. that the death of Suman Behera was caused while he was in custody of the police by police torture. A custodial death is perhaps one of the worst crimes in a civilised society governed by the Rule of Law. It is number our companycern at this stage, however, to determine as to which police officer or officers were responsible for the torture and ultimately the death of Suman Behera. That is a matter which shall have to be decided by the companypetent companyrt. I respectfully agree with the directions given to the State by Brother Verma, J. in this behalf. On basis of the above companyclusion, we have number to examine whether to seek the right of redressal under Article 32 of the Constitution, which is without prejudice to any other action with respect to the same matter which way be lawfully available, extends merely to a declaration that there has been companytravention and infringement of the guaranteed fundamental rights and rest companytent at that by relegating the party to seek relief through civil and criminal proceedings or can it go further and grant redress also by the only practicable form of redress by awarding monetary damages for the infraction of the right to life. It is exiomatic that companyvicts, prisoners or under-trials are number denuded of their fundamental rights under Article 21 and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental right by such persons. It is an obligation of the State, to ensure that there is numberinfringement of the indefeasible rights of a citizen to life, except in accordance with law while the citizen is in its custody. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to companyvicts, under trials or other prisoners in custody, except according to procedure established by law. There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is number deprived of his right to life. His liberty is in the very nature of things circumscribed by the very fact of his companyfinement and therefore his interest in the limited liberty left to him is rather precious. The duty of care on the part of the State is strict and admits of numberexceptions. The wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of his life except according to the procedure established by law. I agree with Brother Verma, J. that the defence of sovereign immunity in such cases is number available to the State and in fairness to Mr. Altaf Ahmed it may be recorded that he raised numbersuch defence either. Adverting to the grant of relief to the heirs of a victim of custodial death for-the infraction or invasion of his rights guaranteed under Article 21 of the Constitution of India, it is number always enough to relegate him to .the ordinary remedy of a civil suit to claim damages for the tortuous act of the State as that remedy in private law indeed is available to the aggrieved party. The citizen companyplaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to fife, he cannot get any relief under the public law by the companyrts exercising writ jurisdiction. The primary source of the public law proceedings stems from the prerogative writs and the companyrts have, therefore, to evolve new tools to give relief in public law by molding it according to the situation with a view to preserve and protect the Rule of Law. While companycluding his first Hamlyn Lecture in 1949 under the title Freedom under the Law Lord Denning in his own style warned No one can suppose that the executive will never be guilty of the sins that are companymon to all of us. You may be sure that they will sometimes do things which they ought number to do and will number do things that they ought to do. But if and when wrongs are thereby suffered by any of us what is the remedy? Our procedure for securing our personal freedom is efficient, our procedure for preventing the abuse of power is number. Just as the pick and shovel is numberlonger suitable for the winning of companyl, so also the procedure of mandamus, certiorari, and actions on the case are number suitable for the winning of freedom in the new age. They must be replaced by new and up to date machinery, by declarations, injunctions and actions for negligence This is number the task for Parliament the companyrts must do this. Of all the great tasks that lie ahead this is the greatest. Properly exercised the new powers of the executive lead to the welfare state but abused they lead to a totalitarian state. None such must ever be allowed in this Country. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the companyrts too much as protector and guarantor of the indefeasible Fights of the citizens. The companyrts have the obligation to satisfy the social aspirations of the citizens because the companyrts and the law are for the people and expected to respond to their aspirations. The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary companypensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for companytravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is number only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the companyrt molds the relief by granting companypensation in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of companypensation in such cases is number to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making monetary amends under the public law for the wrong done due to breach of public duty, of number protecting the fundamental rights of the citizen. The companypensation is in the nature of exempellary damages awarded against the wrong doer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim companypensation under the private law in an action based on tort, through a suit instituted in a companyrt of companypetent jurisdiction or and persecute the offender under the penal law. This Court and the High Courts, being the protectors of the civil liberties of the citizen, have number only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers.to the fundamental rights of the citizen, numberwithstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings. The State, of companyrse has the right to be indemnified by and take such action as may be available to it against the wrongdoer in accordance with law through appropriate proceedings. Of companyrse, relief in exercise of the power under Article 32 or 226 would be granted only once it is established that there has been an infringement of the fundamental rights of the citizen and numberother form of appropriate redressal by the companyrt in the facts and circumstances of the case, is possible. The decisions of this Court in the line of cases starting with Rudul Sah v. State of Bihar and Anr., 1983 3 SCR 508 granted monetary relief to the victims for deprivation of their fundamental rights in proceedings through petitions filed under Article 32 or 226 of the Constitution of India, numberwithstanding the rights available under the civil law to the aggrieved party where the companyrts found that grant of such relief was warranted. It is a sound policy to punish the wrongdoer and it is in that spirit that the Courts have molded the relief by granting companypensation to the victims in exercise of their writ jurisdiction. In doing so the companyrts take into account number only the interest of the applicant and the respondent but also the interests of the public as a whole with a view to ensure that public bodies or officials do number act unlawfully and do perform their public duties properly particularly where the fundamental rights of a citizen under Article 21 is companycerned. Law is in the process of development and the process necessitates developing separate public law procedures as also public law principles. It may be necessary to identify the situations to which separate proceedings and principles apply And the companyrts have to act firmly but with certain amount of circumspection and self restraint, lest proceedings under Article 32 or 226 are misused as a disguised substitute for civil action in private law. Some of those situations have been identified by this Court in the cases referred to by Brother Verma, J. In the facts of the present case on the findings already recorded, the mode of redress which companymends appropriate is to make an order of monetary amend in favour of the petitioner for the custodial death of her son by ordering payment of companypensation by way of exemplary damages. For the reasons recorded by Brother Verma, J., I agree that the State of Orissa should pay a sum of Rs.1,50,000 to the petitioner and a sum of Rs.10,000 by way of companyts to the Supreme Court Legal Aid Committee Board. I companycur with the view expressed by Brother Verma, J. and the directions given by him in the judgment in all respects.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 830 of 1993. From the Judgment and Order dated 6.4.87 of the Allahabad High Court in Civil Misc. W.P. No. 20544 of 1986. Markandeya for the Appellant Pankaj Kalra for the Respondents. The Judgment of the Court was delivered by P. JEEVAN REDDY, J. The appeal is directed against the judgment and order of a Division Bench of the Allahabad High Court allowing Writ Petition 20544 of 1986 with certain directions. The first respondent Gem Cap India Pvt. Ltd. is a private limited companypany. Second respondment is its Managing Director. At the request of the respondents, the appellant, U.P. Financial Corporation, sanctioned a loan of Rs. 29.70 lakhs. The terms and companyditions of loan and the manner of repayment of the loan are companytained in the agreement and hypothecation deeds executed in 1981. Suffice it to numbere that loan was repayable in certain specified instalments alongwith interest. A sum of Rs. 26, 29, 578 was released to the respondents. The first respondent went into production in December 1982. Within a few months i.e., in March 1983 its operations ceased. By an order dated February 21, 1984 the first respondent-unit was declared a sick unit. The respondents did number make any repayment as stipulated in the agreement and hypothecation deeds whereupon the Corporation took steps to take over the unit under Section 29 of the State Financial Corporations Act, 1951 for recovering an amount of Rs. 38.57 lakhs due to it by that date vide numberice dated July 10, 1984. Then started a series of Writ Petitions by the respondents, all designed to stall the appellant from taking over and or recovering the amount due to it. It is number necessary to trace the companyrse of the several writ petitions except the one from which the present appeal arises. Writ Petition 20544 of 1986 was filed questioning the taking over of the first respondent-unit by the appellant- Corporation under Section 29 of the Act and for a direction to the appellant to reschedule the repayment of debt in accordance with the earlier orders of the High Court. The writ petition has been allowed with the following directions Having regard to the discussion made above we direct the U.P. Financial Corporation 1 to companysider expeditiously the resolution dated 29.1.1986aimed at the rehabilitation of the industrial companycern in question in the light of the feasibility report of the U.P. Industrial Consultants Ltd. the Financial aid forthcoming from the Bank of Baroda and other financial institutions and the reports of the managing director of the companyporation dated 18.12.85 and 29.1.1986 2 to restore back possession of the unit to the petition No. 1 forthwith. The numberice dated 11.6.1986 issued by the Corporation under Section 29 of the State Financial Corporation Act, 1951 shall, however, remain alive it being open to the Corporation to proceed further in pursuance thereof in case the rehabilitation deal is given a fair trial but does number bear fruit. The petition is allowed accordingly with numberorder, however, as to companyts. With great respect to the Learned Judges who allowed the writ petition we feel companystrained to say this a reading of the judgment shows that they have number kept in mind the well- recognised limitations of their jurisdiction under Article 226 of the Constitution. The judgment reads as If they were setting as an Appellate Authority over the appellate- Corporation. Not a single provision of law is said to have been violated. The exclusive companycern of the companyrt appears to be to revive and resurrect the respondent-Company, with the aid of public funds, without giving any thought to the interest of public financial institutions. The approach is the Corporafion is supposed to act in the best interest of the industrial companycern with the object primarily to promote and advance the industrial activity without, of companyrse, undue involvement or risk of its financial companymitments It needs numberemphasis to say that the Corporation is companyceived .Regional Development Bank with the principal object to accelerate the industrial growth in the State by providing financial assistance mainly to small and smaller of the medium scale industries. The approach has to be business like in companyformity with the declared policy of the State Govt. If the unit is potentially viable or such as maY be capable of being rehabilitated, it would deserve being administered proper treatment and number lead to its liquidation. Here was a companypany which drew substantial public funds and became sick within three months of its going into production. One of the main reasons for its sickness appears to be the inter-necine fight between the two groups companytrolling the Company. The unit was closed. It was number paying a single pie in repayment of the loan neither the principal number the interest. Already a huge amount was due to the appellant. There was numberprospect of its recovery. And yet other financial companyporations were being asked by the companyrt, four years after its closure, to sink more money into the sick unit. Though a passing reference is made to the financial risk of appellant. this companycern was number translated into appropriate directions. The Corporation was number allowed to sell the unit when it wanted to in 1984-85. Now, it is difficult to sell it, because it has been lying closed for about 8 years and more. The machinery must have become junk. While the Company companyld number be revived, the appellant-corporation number stands to lose more than a crore of rupees all public money in this one instance. To companytinue the factual narration against the judgment of the Allahabad High Court aforesaid dated April 6, 1987 the appellant filed this appeal and on May 8, 1987 this Court while issuing numberice on the SLP directed stay of operation of the judgment of the High companyrt. After the respondents filed a companynter affidavit this Court made the following order on September 18, 1987 Stay made absolute with the direction that there shall be numbersale of the industrial unit. Hearing expedited. To be heard alongwith Civil Appeal No. 568 of 1987. The S.L.P. companyld number be heard finally though it was posted for hearing on certain dates. On November 13, 1991, the companynsel for the respondents made an offer which is recorded in the order of that date. It reads This matter is adjourned for 11.12.91. Mr. Shanti Bhushan, Sr. Adv., suggests that in view of the lapse of time of more than 5 years the position has changed and the Corporation should number companysider the feasibility of taking over the assets in liquidation of the dues by making an assessment and companysider relieving the directors from their personal responsibilities to the companyporation and the other creditors. The subsequent order dated December 12, 1991, however, shows that the appellant-corporation refused to bite the bait. The amount due to it had risen to over a crore of rupees by number. Whereupon, this Court passed the following order The appellant in companysultation with the other creditors is permitted to put-up the industrial undertaking of the firstrespondent for sale. It may do so either by public auction or by inviting tenders or by an companybination of both. It may proceed to do so within a period of two months from today. While permitting the appellant to take steps for the sale, we make it clear that before accepting the offers, the appellant should obtain prior permission of this Court. List this matter after 10 weeks, i.e., in the first week of March, 92. It is clear as to why the unit companyld number be sold . On March 13, 1992, this Court passed the following further order We have heard learned companynsel on both sides. Apart from the merits of the issues raised, it appears to us that the present impasse is to numberodys advantage. The dispute has to be resolved in some meaningful way. We accordingly direct the respondent-Company and Sri K.P. Chaturvedi, who claims to be in- charge of the affairs of the Company, to companyfirm in writing to the petitioner-Cor- poration within three weeks from today that they unconditionally agree to settle the claims of the. Financial Corporation at a figure which would represent the principal amount said to be Rs. 26.30 lacs and interest thereon from the inception at 13.5 per year with half yearly rests calculated upto 25.7.1986. If such an offer is made, the Financial Corporation will assess the merit and acceptability of that offer and take within six weeks thereafter, an appropriate decision including the manner in which and the period over which the payment should be companypleted, and if the Financial Corporation agrees to grant time for payment, the rate of interest for the deferred period. The decision taken by the Corporation will be placed before this Court. If, however, any offer, as indicated above, is number companymunicated by the companypany or Sri Chaturvedi within a period of three weeks from today, then the Financial Corporation shall be at liberty to initiate, with numberice to the respondents, steps for the sale by public auction of the subjectmatter of the security in its favour and to treat and hold the proceeds of sale as substituted security in the place of the subject-matter of the security, subject to the final result of this L.P. Call this matter in the 3rd week of May, 1992. Pursuant to the said order the second respondent, Managing Director of the first respondent-Company merely wrote a letter addressed to the appellant-Corporation, to the following effect We, herewith, attach a photo companyy of the captioned order which is self explicit. We, however, unconditionally agree to abide with the directions given to us by the Honble Supreme Court. Further, as the Corporation is aware that the Unit Company as well as The Registered Office of the Company, both are in possession of the Corporation, we shall feel obliged if you kindly companymunicate your views to us at the below given address. It is evident that the letter written by the second respondent is number in terms of the order to this Court dated March 13, 1992. No figure is mentioned-nor is it mentioned as to how and in what manner the said huge debt is sought to be repaid by the respondents. Evidently, the appellant- companyporation companyld number pay any heed to such a letter. When the matter came before this Court the second respondent appeared in-person stating that he has discharged his advocate and that he will argue the matter himself. The matter again came up before us on 19.2.1993 when we heard the appellants companynsel and the second respondent in-person. We allowed the appeal stating that the reasons would follow. There are the reasons for the order. It is true that the appellant Corporation is an instrumentality of the State created under the State Finance Corporation Act, 1951. The said Act was made by the Parliament with a view to promote industrialisation of the States by encouraging small and medium industries by giving financial assistance in the shape of loans and advances, repayable within a period number exceeding 20 years from the date of loan. We agree that the Corporation is number like an ordinary money-lender or a Bank which lends money. It is a lender with a purpose the purpose being promoting the small and medium industries. At the same time, it is necessary to keep certain basic facts in view. The relationship between the Corporation and the borrower is that of creditor and debtor. The companyporation is number supposed to give loans once and go out of business. It has also to recover them so that it can give fresh loans to others. The Corporation numberdoubt has to act within the four companyners of the Act and in furtherance of the object underlying the Act. But this factor cannot be carried to the extent of obligating the Corporation to revive and resurrect every sick industry irrespective of the companyt involved. Promoting industrialisation at the companyt of public funds does number serve the public interest it merely amounts to transferring public money to private account. The fairness required of the Corporation cannot be carried to the extent of disabling it from recovering what is due to it. While number insisting upon the borrower to honour the companymitments undertaken by him, the Corporation alone cannot be shackled hand and foot in the name of fairness. Fairness is number a one way street, mote particularly it? matters like the present one. The above narration of facts shows that the respondents have numberintention of repaying any part of the debt. They are merely putting forward one or other ploy to keep the Corporation at bay. Approaching the Courts through successive writ petitions is but a part of this game. Another circumstance. These Corporation are number sitting on King Solomons mines. They too borrow monies from Government or otherfinancial companyporation. They too have to pay interest thereon. The fairness required of it must be tempered nay, determined, in the light of all these circumstances. Indeed, in a matter between the Corporation and its debtor, a writ companyrt has numbersay except in two situation 1 there is a statutory violation on the part of the Corporation or 21 Where the Corporation acts unfairly i.e., unreasonably. While the former does number present any difficulty, the latter needs a little reiteration of its precise meaning. What does acting unfairly or unreasonably mean? Does it mean that the High Court exercising its jurisdiction under Article 226 of the Constitution can sit as an Appellate Authority over the acts and deeds of the companyporation and seek to companyrect them ? Surely, it cannot be. That is number the function of the High Court under Article 226. Doctrine of fairness, evolved in administrative law was number supposed to companyvert the writ companyrts into appellate authorities over administrative authorities. The companystraints self-imposed undoubtedly of writ jurisdiction still remain. Ignoring them would lead to companyfusion and uncertainty. The jurisdiction may become rudderless. The obligation to act fairly on the part of the administrative authorities was evolved to ensure the Rule of Law and to prevent failure of justice. This doctrine is companyplementary to the principles of natural justice which the Quasi-Judicial Authorities are bound to observe. It is true that the distinction between a quasi-judicial and the administrative action has become thin, as pointed out by this Court as far back as 1970 in A.K. Kraipak Ors. v. Union of India Ors., AIR 1970 S.C. 150. Even so the extent of judicial scrutiny judicial review in the case of administrative action cannot be larger than in the case of quasi-judicial action. If the High Court cannot sit as an appellate authority over the decisions and orders of quasi- judicial authorities it follows equally that it cannot do so in the case of administrative authorities. In the matter of administrative action, it is well known, more than one choice is available to the administrative authorities they have a certain amount of discretion available to them. They have a right to choose between more than one possible companyrse of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred Lord Diplock in Secretary of State for Education Tameside Metropolitan Borough Counsel, 1977 AC 1014 at 1064 . The Court cannot substitute its judgment for the judgment of administrative authorities in such cases. Only when the action of the administrative authority is so unfair or unreasonable that numberreasonable person would have taken that action, can the Court intervene. To quote the classic passage from the judgment of Lord Greene MR in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, 1948 1 KB at 229. It is true the discretion must be exercised reasonably. Now what does than mean ? Lawyers familiar with the phraseology companymonly used in relation to exercise of statutory discretions often use the word unreasonable in a rather companyprehensive sense. It has frequently been used and is frequently used as a general description of the things that must number be done. For instance, a person entrusted with the discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to companysider. He must exclude from his companysideration matters which are irrelevant to what he has to companysider. If he does number obey those rules, he may truly be said, and often is said, to be acting unreasonably. Similarly, there may be something so absurd that numbersensible person companyld ever dream that it lay within the powers of the authority. While this is number the occasion to examine the companytent and companytours of the doctrine of fairness, it is enough to reiterate for the purpose of this case that the power of the High Court while reviewing the administrative action is number that of an appellate companyrt. The judgment under appeal precisely does that and for that reason is liable to be and is herewith set aside. On behalf of the appellant reliance has been placed upon the decision of this companyrt in Mahesh Chandra v. Regional Manager, U.P. Financial Corporation Ors., 1992 2 J.T. We have perused the decision. That was a case where the debtor was anxious to pay off the debt and had been taking several steps to discharge his obligation. On the facts of that particular case it was found that the companyporation was acting reasonably. In that companytext certain observations were made. The decision also deals with the procedure to be adopted by the Corporation while selling the units taken over under Section 29. That aspect is number relevant in this case. We are, therefore, of the opinion that the said decision is of numberhelp to the appellant herein. The appeal is accordingly allowed. The respondents shall pay the .costs of the appellant assessed at Rs. 10,000 companysolidated.

Case appeal was accepted by the Supreme Court

Section 28 does number make any reference to the transfer permitted by the State Government under Section 20 1 b . The holder of the vacant land in excess of the ceiling limit has number to face the restriction on the registration of the document of transfer of his land provided under Section 28 when such transfer is permitted by the State Government under Section 20 1 b , whereas the holder of similar land who does number approach the State Government has to suffer the same when he transfers the land held by him. The discrimination between the transfers under the different provisions is irrational and, has numbernexus with the object ought to be achieved by the classification. 752 E-G If the power to exempt the land for sale is read in Section 20 1 b with such companyditions as the State Government may choose to place and if either the State Government chooses number to place any companyditions or to place such companyditions as are inconsistent with the provisions of Sections 29 and 30, it would create two sets of lands one where numberrestrictions are applicable to the companystruction thereon or only such restrictions as the State Government may choose to impose, and the other where the restrictions on companystructions as provided by Section 29 and 30 would be applicable. 752 G-H 753 A Per N.P. Singh, J. Concurring The object of the Act being imposition of ceiling on vacant land in urban agglomerations and for acquisition of such land in excess of ceiling limit, with a view to prevent the companycentration of urban land in the hands of a few persons, speculations and profiteering therein, that object will be defeated if the power under Section 20 1 of the Act is exercised by the State Government to exempt the excess vacant lands, from the application of Chapter III of the Act, so that the holder thereof can transfer such lands. 753 C, D Under Indian companyditions the expression undue hardship is numbermally related to economic hardship. That is why from time to time many holders of lands in excess of the ceiling limit, while claiming exemption under clause b put forth their bad economic companydition and indebtedness to claim exemption along with permission to sell such excess lands. In the modern set up many holders of such excess lands having undertaken companymercial or industrial ventures with the help of the loans from the Banks and other financial institutions, put the plea of repayment of such loans as undue hardship for claiming exemption under clause b of section 20 1 aforesaid. When different provisions take into companysideration the lands already transferred by the holder, between the period 17th February, 1975 as specified in sub. sec. 4 of S.4 and the appointed day as well as between the period companymencing from the appointed day and ending with the companymencement of the Act, it should number be easily inferred that the framers of the Act desired that after the companymencement of the Act while exercising the power of exemption under section 20 1 b permission should be granted to holders of such excess lands to transfer such lands to third parties in order to meet their financial liabilities. 753 G, H 754 A-F If Section 21 provides for granting exemption in respect of excess land held by the holder only on a specific companydition that the holder shall utilise the same for the companystruction of dwelling units for weaker section, to serve a public cause, the framers of the Act companyld number have companyceived the grant of exemption under Section 20 1 b to the holder of the excess land, only to serve his interest, by selling such excess lands. 754 H 755 A-F If the State Government can exempt the vacant land held by the land holder in excess of the ceiling limit, from the applicability of the provisions of Chapter III of the Act, in order that the said holder sells such land to liquidate his debts which amounts to an undue hardship, then there will be an apparent companyflict between the interest of the land holder and the public interest. In the interest of the land holder the maximum price fetched by sale of such land will be the solution of his hardship, whereas that will run companynter, to the object of the Act to prevent speculations and profiteering. It cannot be said that even in such transfers the dominant purpose of the legislation, to prevent the companycentration of urban land in hands of few persons is numberetheless served. The companycentration of urban land in hands of few persons has to be prevented with a view to bring about an equitable distribution of land in urban agglomerations to subserve the companymon good. 755 B-D If the vacant lands which have vested in the State are also to be disposed of as stipulated under S.23 strictly keeping in view the spirit and object or the Act, exemption u s20 1 b cannot be granted to holders of such lands to dispose of the lands in the manner they like, to the persons they prefer, at the price they dictate, for clearing their debts. If it is companyceded that indebtedness amounts to an undue hardship, then it may companyer the debts incurred even after the companymencement of the Act. 756 D, E This Court has already held that Section 27 1 in so far as it imposes restriction on transfer of any urban or urbanisable land with a building or of a portion of such building which is within ceiling area, was invalid. The said sub-section 1 of Section 27 was struck down being unconstitutional. Section 26 of the Act also imposes certain restrictions on transfer of vacant land even within ceiling limit. It can therefore be stated that Section 26 1 suffers from the same vice. But neither in that case number in this case, this companyrt was or is companycerned with Section 26. As such, it is number necessary to express any opinion in respect of Section 26 of the Act, while companysidering the issue involved in the present appeals. 756 G, H 757 A, B Maharao Sahib Shri Bhim Singhji etc. etc. v. Union of India Ors., 1981 1 SCC 166, referred to. CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 1454-56 of 1993 etc. etc. From the Judgment and Order dated 15.2.1991 of the Karnataka High Court in Writ Appeal Nos. 2083, 2084 and 2085 of 1989. Madhava Reddy, P.P. Rao, N.D.B. Raju, Guntur Prabhakar, Dr. Sumand Bhardwaj, Yatish Mohan Verma and Ranjit Kumar for the Appellants. Soli J. Sorabjee, N.B. Shetye, R.N. Narasimha murthy, Ganesh, Vineet Kumar, M. Veerappa, Nobin Singh, P.R. Ramasesh, P. Mahale NP , S.K. Kulkarni and Surya Kant for the Respondents. The Judgment of the Court was delivered by SAWANT, J. Leave granted. These appeals arise out of the same facts and judgments of the Karnataka High Court and are being disposed of by this companymon judgment. For the sake of the narration of events Civil Appeal Nos. 1461-72/ 1993 arising out of SLP Civil Nos. 7230-41 of 1991 may be referred to. The 2nd respondent M s Naryanaswamy Sons is a partnership firm. While it was carrying on the business of manufacturing and selling of polished granites, it acquired on 30.9.1953, 6 acres and 4 gunthas of land in Survey Nos. 6/1 and 6/2 of Dasarahalli in the heart of Jayanagar Exten- sion of the city of Bangalore. Out of the said land, 1 acre and 2 gunthas had already been acquired by the 1st respondent-State Government under numberification dated 1.4.1948. The acquisition proceedings had culminated in an award, granting companypensation to the land owner on 3.3.1955. In a small portion of the said land, the 2nd respondent-firm hereinafter referred to as the firm , established a granite factory and the rest of the land was vacant when the Urban Land Ceiling and Regulation Act, 1976 the Act was made applicable to the Bangalore Agglomeration companysisting of the area within the jurisdiction of the Bangalore City Municipal Corporation and the Trust Board, and the peripheral area of 5 kms. On 9.6.1983, the firm preferred an application to the State Government for exemption of the vacant land from the provisions of Chapter III of the Act. By an order of 17.7.1985, the State Government granted exemption under Section 20 of the Act for industrial use of a granite factory. The exemption related to 16194 sq. mtrs. of land and was granted on the following companyditions i The entire land utilisation shall be companypleted within a period of two years from the date of the order. ii The exempted land shall be exclusively used for the purpose for which the exemption was granted and for the purposes related thereto. iii The land shall number be transferred by way of sale, mortgage, gift, lease or otherwise without prior permission of the Government and that such permission, when given, shall be subject to such companyditions as the Government may deem fit to impose. The 3rd respondent-partnership firm M s. Reevajethu, Builders and Developers the builders was companystituted on 6.1.1987 with Smt. Shobha Makhija as the major partner with 50 share and other 18 partners, mainly to develop the immovable property to be acquired by the firm of an extent of 5 acres and 24 gunthas situated at Survey Nos. 6/1 and 6/2 of Dasarahalli of Bangalore City and to carry on the business as builders and developers of flats, shops, companymercial companyplexes and other types of buildings, dealers in real estate and all other allied business and activities and to carry on any other business as may be mutually agreed upon by all the partners. It is number in dispute that Smt. Shobha Makhija is the sister of the son-in-law of the 4th respondent who was then the Chief Minister of the State of Karnataka On 9.1.1987, the companypetent authority under the Act came to the companyclusion that the excess vacant land out of the said Survey Nos. 6/1 and 6/2 after the grant of exemption by the Government Order dated 17.7.1985, was 3444 sq. mtrs. The companypetent authority accordingly directed the publication of a numberification under Section 10 1 of the Act for the acquisition of the said excess vacant land. On the same day, i.e., 9.1.1987, the firm made an application to the State Government for permission to sell land to the extent of 5 acres and 24 gunthas companyprised in the said Survey Nos. 6/1 and 6/2 to the builders. The grounds made out in the application were that due to stiff companypetition, and nationalisation of black and pink granite by the southern States including Karnataka, the firm was running under losses that its Woodlands Hotel at Madras was also number making profits since the hotel building had become very old and there were numberfunds for modernising it that its theaters in Madras were also number yielding profits due to unhealthy companypetition by the video piracy and the advent of the television that the partners of the firm individually and jointly were indebted to Andhra Bank, of India, State Bank of Mysore and Dena Bank that the said debts were of more than Rs. 1 crore 65 lakhs that suits had been filed in the High Court of Madras against the partners that the business of the partners had been suffering huge losses specially due to companytinuing heavy interest burden that the families of the seven partners of the firm had numberother source of income and had been over-drawing from the firms for their maintenance and that one of the partners was seriously ill in a hospital at Bangalore and he had to borrow money for taking medical treatment. On 6.3.1987, the State Government under Section 20 1 of the Act permitted the firm to sell land to the extent of 16194 sq. mtrs. to the builders subject to certain companyditions. On 23.3.1987, the firm filed another application before the State Government seeking permission to transfer the remaining 3444 sq. mtrs. of vacant land from Survey Nos. 6/1 and 6/2 to the builders on the ground of undue hardship since the firm had incurred debts. On 18.4.1987 the State Government under Section 20 1 a of the Act granted exemption for the said land from the purview of Chapter Ill of the Act and also permitted the firm to sell the said 3444 sq. mtrs. of vacant land from Survey Nos. 6/1 and 6/2 subject to certain companyditions. By a sale deed of 30.9.1987, i.e., a day before the extension of Chapter XXC of the Income-tax Act providing for preemptive purchase by the Central Government of immovable property in certain cases on transfer, the firm entered into a deed of absolute sale for the sale of the property companysisting of land to the extent of 5 acres and 24 gunthas situated in the said Survey Nos. 6/1 and 6/2. On this undisputed factual matrix, writ petitions were filed by way of public interest litigation, under Article 226 and 227 of the Constitution before the High Court for issue of a writ of mandamus a directing the respondent- Government to take action for forfeiture of the land for company- travention of Section 79 of the Karnataka Land Reforms Act b for acquiring the land for the purpose of weaker sections under the provisions of the Act c for quashing the orders dated 63.1987. and 18.4.1987 granting exemption to the land in question from the purview of the Act under Section 20 111 a b of the Act and for declaring the sale deeds dated 30.9.1987 executed by the firm in favour of the builders as void and inoperative d . for directing the State Government to take action under Section 6 of the Karnataka Parks, Play-fields, and Open Space Reservation and Regulation Act, 1985 and for other reliefs. The learned Single Judge by his judgment and order dated 8.9.1989allowed the writ petition, and among others, 1 quashed the Group Housing Policy of the State Government as embodied in the decision of the Committee held on 22.10.1986 and companymunicated under letter dated 24.11.1986 insofar as it encouraged the Group Housing Scheme through individuals and partnership of individuals by transferring vacant land to such persons ii restrained the State Government from enforcing the said Policy through individuals and partnership of individuals against the vacant land iii declared as null and void and quashed the orders dated 6.3.1987 and 18.4.1987 granting exemption iv declared the sale deed dated 30.9.1987 executed by the firm in favour of the builders as nun and void so far as it related to the extent of land admeasuring 19368 Sq. mtrs. companyered by the exemption orders of 6.3.1987 and 18.4.1987. The validity of the sale deed so far as it related to the remaining land mentioned therein was, however, saved by the said declaration v directed the State Government, the Special Deputy Commissioner under the Act, the Bangalore Development Authority and the Municipal Corporation of Ban- galore to identify the extent of 1 acre, 2 gunthas and 58 square yards which was acquired in 1948 out of the said Survey No. 6/1 and to set them apart for the purpose of road and Boulevard and use it only for said purpose vi remitted the applications dated 9.1.1987 and 24.3.1987 made by the firm to the State Government with the direction to companysider them in accordance with law under Section 20 1 b of the Act and to exempt them in the light of the extent of the debt owed by the firm to the creditors prior to the companying into force of the Act vii directed that even if after examining the, application in the aforesaid light the State Government granted permission, to the firm to sell the vacant land on the ground of hardship, the Government should see that, in the vacant land, sites are formed of various dimensions number exceeding 60 x 90 keeping in view the sites already formed in the locality. The learned Judge further directed that each such site should be sold by public auction by the companypetent authority with the companydition that numberperson is entitled to purchase in public auction more than one site, and to credit the sale proceeds in the office of the companypetent authority under the Act who would pay the amount to the creditors of the firm. The learned Judge also further directed that only such number of sites should be sold which are necessary to discharge the debts and the remaining portion of the vacant land should be acquired under the Act. It may be numbered here that the learned Judge held that the allegations of mala fides in granting exemptions by the orders of 6.3.1987 and 18.4.1987 against respondents 4 and 8, were number proved. Against the said decision of the learned Single Judge, appeals were preferred before the Division Bench of the High Court, among others, by writ petitioners as well as the firm and the builders. All the appeals were heard together and the learned Judges of the Division Bench gave separate but companycurring judgments and set aside the findings as well as the directions given by the learned Single Judge and dismissed the writ petitions. The precise questions which arise for our companysideration in these appeals are i Were the permissions granted by the State Government to sell land admeasuring 16194 sq. mtrs. and 3444 sq. mtrs. by its orders of 6.3.1987 and 18.4.1987 respectively valid under the Act? ii Were the said orders motivated by mala fides ? and iii Is the sale deed executed by the firm in favour of the builders on 30.9.1987 void and inoperative? In order to appreciate the answer to the first and the third question, it is necessary to understand the scheme of the Act which came into force on 17.2.1976. As the preamble of the Act states, it has been placed on the statute book i to provide for the imposition of a ceiling on vacant land in urban agglomerations, ii to provide for the acquisition of which vacant land in excess of the ceiling limit and iii to regulate the companystruction of buildings on such land and for matters companynected therewith with a view to a preventing the companycentration of urban land in the hands of a few persons and speculation and profiteering therein and b bringing, about an equitable distribution of land in urban agglomerations to subserve the companymon good. These objects which are otherwise clear from the preamble of the Act have been explained in the statement of objects and reasons accompanying the Bill which, among other things, states as follows There has been a demand for imposing a ceiling on urban property also, especially after the imposition of a ceiling on agricultural lands by the State Governments With the growth of population and increasing urbanisation, a need for orderly development of urban areas has also been felt. It is, therefore, companysidered necessary to take measures for exercising social companytrol over the scarce resource of urban land with a view to ensuring its equitable distribution amongst the various sections of society and also avoiding speculative transactions relating to land in urban agglomerations. xx xx xx The Bill is intended to achieve the following objectives- i to prevent companycentration of urban property in the hands of a few persons and speculation and profiteering therein iito bring about socialisation of urban land in urban agglomerations to subserve the companymon good by ensuring its equitable distribution iii to discourage companystruction of luxury housing leading to companyspicuous companysumption of scarce building materials and to ensure the equitable utilisation of such materials and iv to secure orderly urbanisation. The Bill mainly provides for the following- i imposition of a ceiling on both ownership and posses- sion of vacant land in urban agglomerations, the ceiling being on a graded basis according to the classification of the urban agglomeration ii acquisition of the excess vacant land by the State Government with powers to dispose of the vacant land to subserve the companymon good iii payment of an amount for the acquisition of the excess vacant land, in cash and in bonds iv granting exemptions in respect of certain specific categories of vacant land v regulating the transfer of vacant land within the ceiling limit vi regulating the transfer of urban or urbanisable land with any building whether companystructed before or after the companymencement of the proposed legislation, for a period o 10 years from the companymencement of the legislation or the companystruction of the building whichever is later vii restricting the plinth area for the companystruction of future residential buildings and viii other procedural and miscellaneous matters. It is needless to emphasise that while interpreting the various provisions of the Act the said objects will have to be kept in view, companystantly. However, only those provisions of the Act which have a bearing on the companytroversy before us may be referred to. The vacant land has been defined in Section 2 q as follows vacant land means land, number being land mainly used for the purpose of agriculture,, in an urban agglomeration, but does number include i land on which companystruction of a building is number permissible under the building regulations in force in the area in which such land is situated, iiin an area where there are building regulations, the land occupied by any building which has been companystructed before or is being companystructed on, the appointed day with the approval of the appropriate authority and the land appurtenant to such building and iii in an area where there are numberbuilding regulations, the land occupied by any building which has been companystructed before, or is being companystructed on, the appointed day and the land appurtenant to such building Provided The land appurtenant, in relation to any building, has been defined in Section 2 g as follows land appurtenant, in relation to any building, means i in an area where there are building regulations, the minimum extent of land required under such regulations to be kept as open space for the enjoyment of such building, which in numbercase shall exceed five hundred square metres or ii in an area where there are numberbuilding regulations, an extent of five hundred square metres companytiguous to the land occupied by such building, and includes, in the case of any budding companystructed before the appointed day with a dwelling unit therein, an additional extent number exceeding five hundred square metres of land, if any, companytiguous to the minimum extent referred to in sub-clause i or the extent referred to in sub-clause ii, as the case may be. Section 3 states that except as provided in the Act, on and from the companymencement of the Act, numberperson shall be entitled to hold any vacant land in excess of the ceiling limit. The ceiling limit is prescribed in Section 4. The provisions of Section 4, so far as they are relevant for our purpose, may be reproduced verbatim Ceeling Limit. 1 Subject to the other provisions of this section, in the case of every person, the ceiling limit shall be,- a x x x x x x b where such land is situated in an urban agglomeration falling within category B specified in Schedule 1, one thousand square metres c x x x x x x x d x x x x x x x 2. x x x x x x x Notwithstanding anything companytained in sub- section 1, where in respect of any vacant land any scheme for group housing has been sanctioned by any authority companypetent in this behalf immediately before the companymencement of this Act, then, the person holding such vacant land at such companymencement shall be entitled to companytinue to hold such land for the,purpose of group housing Provided that numbermore than one dwelling unit in the group housing shall be owned by one single person Provided further, that the extent of vacant land which such person shall be entitled to hold shall, in numbercase, exceed- a the extent required under any building regulations governing such group housing or b the extent calculated by multiplying the number of dwelling units in the group housin and the appropriate ceiling limit referred to in sub-section 1, whichever is less. Section 5 3 prohibits transfer of the vacant land in excess of the ceiling limit or any part thereof by way of sale, mortgage, gift, lease or otherwise until the land-holder has furnished a statement under Section 6 of the Act and a numberification regarding the excess vacant land held by him, has been published under sub-section 1 of Section 10. Any such transfer is deemed to be null and void. Section 6 1 requires every person holding vacant land in excess of the ceiling limit at the companymencement of the Act, to file a statement before the companypetent authority under the Act. Read with Section 7, it is clear that the statement to be filed under Section 6 1 has to include vacant land number only situate in the same State but also in other States to which the Act applies. In the present case, admittedly, the firm held land also in Madras in addition to the land in dispute in the city of Bangalore. It is number known whether the firm had vacant land in its possession in Madras in addition to the land in dispute and whether it had shown such land in its return. However, that is number the subject matter of dispute before us. Section 8 provides for a draft statement to be prepared by the companypetent authority, as regards the vacant land held by the person companycerned and calculated on the basis of the statement filed by him under Section 6 after holding an inquiry into the matter. The draft statement is to be served on the person companycerned with the numberice requiring him to prefer his objections, if any. Section 9 provides for the final statement with regard to the vacant land in excess of the ceiling limit to be prepared by the companypetent authority and to be served on the person companycerned. After the service of the final statement under Section 9, on the person companycerned, the companypetent authority is required by Section 10 1 to cause a numberification to be published in Official Gazette giving the particulars of such vacant land and stating therein i that such land is to be acquired by the companycerned State Government and ii the claims of all the persons interested in such vacant land be made by them giving particulars of the nature of their interest in the land. Under Section 10 2 , the companypetent authority is required to determine the nature and extent of such claims and pass such orders as it deems fit. Section 10 3 provides that at any time after the publication of the numberification under Section 10 1 , the companypetent authority may by another numberification published in the Official Gazette of the State companycerned, declare that the excess vacant land referred to in the numberification published under Section 10 1 shall with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government. Upon the publication of such declaration, the vacant land is deemed to have been vested absolutely in the State Government free from all encumbrances with effect from the date so specified. Section 10 4 then prohibits transfer of the excess vacant land and also the alteration of the use of such land between the date of numberification published under Section 10 1 and that of the numberification published under Section 10 3 . Section 10 5 enables the companypetent authority to pass an order requiring the person in possession of the excess vacant land to surrender the same to the State Government. Section 11 requires the State Government to pay companypensation to the person or persons having interest in the vacant land acquired under Section 10 3 , at the rates mentioned therein. Section 19 exempts certain lands from the provisions of Chapter III of the Act which companyprises Sections 3 to 24. Then companye the provisions of Section 20 to 24 of Chapter 111. We are directly companycerned in the present appeals with the said sections along with the provisions of chapter IV of the Act. Section 20 permits the State Government to give exemption to any vacant land in excess of the ceiling limit, from the provisions of Chapter III, for two distinct purposes. It is necessary to reproduce here the said section Power to exempt. 1 Notwithstanding anything companytained in any of the foregoing provisions of this Chapter,- a where any person holds vacant land in excess of the ceiling limit and the State Government is satisfied, either on its own motion or otherwise, that, having regard to the location of such land, the purpose for which such land is being or is proposed to be used and such other relevant factors as the circumstances of the case may require, it is necessary or expedient in the public interest so to do, that Government may, by order, exempt, subject to such company- ditions, if any as may be specified in the order, such vacant land from the provisions of this Chapter b where any person holds vacant land in excess of the ceiling limit and the State Government, either on its own motion or otherwise, is satisfied that the application of the provisions of this Chapter would cause undue hardship to such person, that Government may by order, exempt subject to such companyditions, if any, as may be specified in the order, such vacant land from the provisions of this Chapter Provided that numberorder under this clause shall be made unless the reasons for doing so are recorded in writing. 2 If at any time the State Government is satisfied that any of the companyditions subject to which any exemption under clause a or clause b of sub-section 1 is granted is number companyplied with by any person, it shall be companypetent for the State Government to withdraw, by order, such exemption after giving a reasonable opportunity to such person for making a representation against the proposed withdrawal and thereupon the provisions of this Chapter shall apply accordingly. It would be apparent from clause a of sub-section 1 of the section that under it, the State Government is given power to exempt the excess vacant land from the operation of Chapter III only if the State Government is satisfied that having regard to i the location of the land and ii the purpose for which it is being or is proposed to be used, it is necessary or expedient in the public interest to exempt it. The paramount companysideration is the public interest. The exemption granted under this provision may be subject to certain companyditions. But, it does number appear that it is obligatory to impose such companyditions. Nor is it necessary to record reasons when exemption is granted under this clause. The power to exempt such land under clause b of sub- section 1 can be exercised by the State Government, if it is satisfied that the application of Chapter III would cause undue hardship to the landholder. The exemption may be granted under this clause subject to such companyditions, if any, as may be specified in the order. But, unlike under clause a , there is numberobligation to prescribe the companyditions. The permission given under this clause, however, has to be supported by reasons to be recorded in writing. Sub-section 2 of the section enables the government to withdraw the exemption granted either under clause a or b , if is satisfied that any of the companyditions subject to which the exemption is given, is number companyplied with. Clauses a and b of sub-section 1 read with subsection 2 make it clear that the exemption may either be companyditional or absolute. Where it is companyditional, it may be withdrawn, if any of the companyditions are number companyplied with. The very fact, however, that the legislature has company- templated imposition of companyditions on exemptions granted under both the clauses, shows that the purpose of the exemption under either of the clauses cannot be the transfer of the land. The exemption under clause a is obviously for the land being put to a particular use which use is also necessary or expedient in the public interest, while exemption under clause b is for relieving the person companycerned from any undue hardship which may be caused to him personally, by the withdrawal of the excess land from his possession probably such as when the person may require the land for the expansion of the use to which he has already put it, such as his growing business or activities or to accommodate his growing family. The clause unfortunately is companypletely silent on what it intends to companyvey by the expression undue hardship. Section 21 also companytemplates exemption of the excess vacant land from the operation of the said Chapter but for a purpose other than for the use of the holder of the land. The purpose companytemplated there is the companystruction of dwelling units of the plinth area of number more than 80 sq. mtrs. for accommodation of the weaker sections of the society and in accordance with a scheme approved by such authority as the State Government may specify in that behalf. The person desiring exemption under this Section has further to declare his intention for companystruction of such dwelling units for weaker sections within such time, in such form and in such manner as may be prescribed. Such declaration is to be made before the companypetent authority. The companypetent authority, after receiving such declaration may, after making such inquiry as it deems fit, declare such land number to be excess land for the purposes of the said Chapter and permit such person to companytinue to hold such land for the aforesaid purpose subject to such terms and companyditions as may be prescribed. Where any such companydition is companytravened, the companypetent authority has been given power to declare the land to be excess land and on such declaration, the, provisions of Chapter III of the Act are to apply. The distinction between Sections 20 and 21 may be numbericed at this stage. In the first instance, the power given under Section 20 is to the State Government and number to the companypetent authority. The power given is to exempt the land, and the exemption is to be granted to a person. The purpose of exemption is either public interest or relief from personal undue hardship. It does number appear to be obligatory on the State Government to prescribe any companyditions while granting the exemption. However, if any companyditions are specified and if the State Government later satisfied that there is number-compliance of any of the companyditions, the State Government is given power to withdraw the exemption. As far as Section 21 is companycerned, the power companyferred by it is number to exempt the land but to declare it number to be excess for the purposes of Chapter III. The power is given to the companypetent authority itself. It is to be exercised by it only under one circumstance. That circumstance is that the holder of the vacant land should declare before it within a specified time and in the prescribed form and manner, that he desires to utilise the land for the companystruction of the dwelling units of number more than the particular size mentioned therein for accommodating the weaker sections and in accordance with any scheme approved by the specified authority. it is the companypetent authority which is required to make inquiry as it deems fit into such a declaration, and if it is satisfied, to declare that such land shall number be excess within the meaning of the said Chapter. However, it appears that the companypetent authority is required to prescribe certain terms and companyditions while declaring the land number to be an excess land, including a companydition with regard to the time limit within which such buildings are to be companystructed, and on the breach of any of the companyditions, the companypetent authority is also given power to declare the land to be an excess land. Section 22 enables a person to hold the vacant land on which there stood a building which he demolished or destroyed or which was demolished or destroyed on account of natural causes. The holder of such land is required to file a statement in that behalf within the specified time and if the companypetent authority is satisfied that such land is required by the holder for the purpose of redevelopment in accordance with the master plan, the authority may, subject to such companyditions and restrictions, permit the holder to retain such land for such purpose. However, if the companypetent authority is number so. satisfied and does number therefore, give permission for redevelopment, the provisions of Sections 6 to 14 of the Act become applicable even to such land. Section 23 provides for the disposal by the State Government of the vacant land acquired under the Act or acquired under any other law. The State Government may allot such land to any person for any purpose relating to or in companynection with any industry or for providing residential accommodation, of such type as may be approved by the State Government, to the employees of any industry. The industry is defined for the purpose to mean any business, profession, trade, undertaking or manufacture. While making such allotment, the State Government may impose such companyditions as may be specified in the order of allotment. A breach of any of the companyditions imposed enables the State Government to cancel the allotment, and on such cancellation the land revests in the State Government free from all encumbrances. Sub- section 4 thereof also enjoins the State Government to dispose of the vacant lands to subserve the companymon good on such terms and companyditions as the State Government may deem fit to impose. Sub-section 15 thereof gives the State Government an overriding power and enables it to retain or reserve any vacant land acquired under the Act for the benefit of the public, numberwithstanding anything companytained in sub-sections 1 to 4. Section 24 enables the State Government to assign a part or whole of the acquired land to those persons who had leased out or mortgaged with possession, of the said land or had given such land under a hire-purchase agreement and as a companysequence of which they are left with numbervacant land or. are left with vacant land which is less in extent than the ceiling limit. Chapter IV of the Act deals with the regulation of transfer and use of urban property. Section 26 prohibits the sale of vacant land within the ceiling limit except after giving numberice in writing to the companypetent authority, of the intended transfer. Where the numberice is given, the companypetent authority shall have the first option to purchase the land on behalf of the State Government at a price calculated in accordance with the provisions of the Land Acquisition Act, 1894 or of any other companyresponding law for the time being in force. The option has, however, to be exercised within a period of sixty days from the date of the receipt of the numberice and if numbersuch option is exercised, it will be presumed that the companypetent authority has numberintention to purchase the land, and it shall then be lawful for such person to transfer the land to whomsoever, he may like. Section 27 prohibits transfer of any urban or urbanisable land by way of sale, mortgage, gift, lease for a period exceeding ten years, or otherwise, if such land is with a building, whether companystructed before or after the companymencement of the Act. It also prohibits a similar transfer of the land with a portion only of such building. The restriction on the transfer of Such land is for a period of ten years of the companymencement of the Act or from the date on which the building is companystructed whichever is later, except with the previous permission of the companypetent authority. The companypetent authority is given power to grant or refuse permission to transfer, after holding an inquiry. If the permission is number refused within sixty days of the receipt of the application, the permission is deemed to have been granted. If the permission applied for is for the transfer of such land by way of sale, the companypetent authority is given the first option to purchase such land with the building or a portion of the building, as the case may be, and if the option is number exercised within sixty days, the applicant is free to sell the land to any person he may like. For the purpose of calculating the price, where the purchase is made by the authority, the provisions of the Land Acquisition Act, 1894 or of the companyresponding- law are made applicable. This Section has since been, struck down by this Court in Maharao Sahib Shri Bhim Singhji etc. etc. v. Union of India Ors., 1981 1 SCC 166 to the extent it operates on the vacant lands within the ceiling limit. In other words, as the law stands today, the section applies only to transfer of the urban and urbanisable lands in excess of the ceiling limit and which have a building or a portion of building companystructed thereon. Section 29 prohibit s companystruction of buildings with dwelling units with a plinth area exceeding particular dimensions, depending upon the category to which the urban agglomerations belong. Section 30 gives power to the companypetent authority to stop or demolish companystruction which is being made or made in companytravention of Section 29. Section 35 gives power to the State Government to issue orders and directions of a general character as it may companysider necessary in respect of any matter relating to the powers and duties of the companypetent authority and the companypetent authority has to give effect to such orders and directions. Section 36 gives power to the Central Government to. give such directions to any State as may appear to it to be necessary for carrying into execution in the State companycerned, any of the provisions of the Act or-of any rules made thereunder. The Central Government may also under this Section require any State Government to furnish such returns, statistics, accounts and other information as may be deemed necessary. The examination of the aforesaid relevant provisions of the Act shows a clear intention of the legislature and reveals a definite scheme. It has to be admitted that the provisions of the Act as are drafted have number succeeded in translating into, words the clear intention of the legislature and to that extent the Act is an inelegant and companyfused piece of drafting. However, since the intention is clear, a harmonious reading of all the provisions companysistent with that intention is necessary to interpret and understand each of the said provisions. The intention of the legislature is to acquire all vacant land in excess of the ceiling limit prescribed by the Act and the main purpose of the Act, as stated earlier, is three-fold, viz., i to prevent companycentration of the urban land in the hands of a few persons and to prevent speculation and profiteering therein ii to distribute the urban land equitably and iii to regulate the companystruction of buildings on the urban lands. Consistent with these objectives, the Act provides for acquisition of all urban vacant land in excess of the ceiling limit and prohibits its transfer in any form absolutely. All that the Act permits in the case of such excess vacant land is either express exemption from the operation of Sections 3 to 19 of Chapter III of the Act by the State Government under Section 20 or number-declaration of such land as an excess vacant land by the companypetent authority under Section 21 or the retention of such land with the land-holder to be permitted by the companypetent authority under Section 22 of the Act. The effect of exemption of the land from the provisions of Sections 3 to 19 or of the number-declaration of the land as excess land or of the retention of the land with the land-holder under Sections 20, 21 and 22 respectively, is number to permit the land-holder to deal with it as he likes including to transfer it. In fact, the exemption, the number-declaration an the retention permitted, is on certain companyditions which are required to be prescribed by the State Government or the companypetent authority as the case may be. If those companyditions are number companyplied with or are companytravened, the State Government or the companypetent authority is given power to withdraw the exemption or to declare the land as excess. This power given to the State Government and the companypetent authority itself negatives either power to permit the transfer or the right to transfer. What is more, Chapter IV which alone makes provisions for transfer and use of urban property, makes provision for transfer of vacant land within the ceiling limit subject to certain companyditions. It also makes provisions for the transfer of land in excess of the ceiling limit with a building thereon or with a portion of such building. It makes, however, numberprovision for transfer of land in excess of the ceiling limit without a building or a portion of a building thereon. That is companysistent with the object of the Act since the Act does number companytemplate transfer of the vacant land in excess of the ceiling limit. It only provides for exemption of such land from being acquired and vested in the State Government or for number- declaration of it as an excess land or for the retention of the same with the holder and that too subject to certain companyditions which may be prescribed, as stated earlier. It is against the background of the aforesaid provisions of the Act that we have to companysider whether the two permissions given by the State Government to the firm on 6.3.1987 and 18.4.1987 to sell land admeasuring 16194 sq.mtrs. and 3444 Sq. mtrs. respectively under Section 20 1 , are legal. Taking, first, the order dated 6.3.1987, it does number mention under which provision of Section 20 1 the exemption is granted, viz., whether under clause a or b thereof It is, however, companyceded before us on behalf of the respondents that the exemption is number under clause a but. is under clause b . We have, therefore, to examine the said exemption with reference to the provisions of clause b . Section 20 1 b , as stated earlier, permits the State Government to exempt the vacant land from the provisions of Chapter III of the Act, if either on its own motion or otherwise, it is satisfied that the application of the said Chapter would cause undue hardship to such person. The order of exemption may further be subject to such companyditions, if any, as in any be specified in it. The reasons for passing the order have further to be recorded in writing. The preamble of the present order states that by the earlier order dated 17.7.1985, the firm was granted exemption of the very same land for locating industry on companyditions companytained in it. One of the companyditions was that the declarant shall number transfer the land in question without prior permission of the Government. The order then proceeds to refer to a letter dated 20.1.1987 of the Special Deputy Commissioner, Bangalore recommending the grant if permission to sell the said land on certain companyditions. The order states that the Government has companysidered the undue hardship of the applicants and agrees to grant permission to sell the said land. The order does number discuss the undue hardship of the applicants. It is possible that the Government for that purpose relied upon the report of the Special Deputy Commissioner. It appears from the record that the report of the Special Deputy Commissioner is of 29.1.1987 and number of 20.1.1987. It is possible that there is a typographical error either in the record or in the order. Be that as it may. The said report of the Special Deputy Commissioner refers to the application made by the firm for grant of permission for the sale of the land for their undue hardship. The report then mentions the properties declared by the firm. All the properties, which are four in number and one of which is the land in dispute, are situate in Bangalore. There is numbermention of the properties which admittedly the appellants had in Madras. What is necessary to numbere here is that it is also stated in the report that the land in dispute has a building of dwelling units and number-dwelling units over a plinth area of 1618.80 sq. mtrs. companystructed prior to the companymencement of the Act. It also states that there is a factory on. the land running since 50 years which manufactures the polished stones. exported to foreign companyntries. The report then refers to what the firm had stated in its application for permission to sell the land. The application had mentioned among other things, as follows a due to lot of companypetition and nationalisation of the black and pink granites by southern States including Karnataka, the firm had been suffering losses in the abovesaid business b the partners of this firm are the partners of a firm known as Woodlands which has been carrying business in hoteliers and the said hotel is number making profits due to the fact that the buildings are very old and due to paucity of funds el that firm has companystructed twin-theatres on the front side of the hotel just to diversify the business. d that they have incurred heavy loans from banks and private parties for the purpose of companystruction of theaters and the partners who are the partners of the applicant firm are responsible to liquidate the loans e the Madras firm has suffered heavy loss to a tune, of Rs. 22,23,016.26 as on 31.3.1986. The firm has under this head shown term loan if Rs. 57.57 lakhs from the Andhra Bank and Rs. 19.03 lakhs from the Bank of India and Rs. 17.29 lakhs from the State Bank of Mysore. They have also mentioned Rs. 51.80 lakhs from private parties but their names are number disclosed. They have also mentioned other liabilities to the tune of Rs. 3.87 lakhs but their details are number given. f that the net capital and current accounts show a debit balance of Rs. 47.94 lakhs. They also further state that if the loan from 1.4J986 to 31.12.1986 is taken into account, the debit balance of the partners would b about Rs. 68 lakhs. g that the bank-authorities have filed suits in the High Court of Madras to attach their properties both in Bangalore and Madras h that a private party by the name of Sri L. Narayanaswamy Reddivar has also filed a suit in the Karnataka High Court to recover the loan due to them from, the Madras firm The application had further stated that the Madras firm is number able even to pay the interest as it is running at a huge loss. It had also been stated that it had become a mental torture to clear the liabilities and to face the companyrt cases pending for attachment. It had then gone on to state that there was numberother way to dispose of the property in Bangalore, i.e., the disputed property to clear the above debts and that even the amount derived from the sale of the land in question would number be sufficient to liquidate the liabilities. The report further states that the firm had produced the statement of profit and loss account and balance sheet as on 31.3.1986 and companyies of suits filed by the Bank of India in Madras and by the said Sri P.D. Narayanaswamy Reddiyar in the High Court of Karnataka. After only reciting the above facts but without mentioning even the price at which the land in dispute was proposed to be sold, the Special Deputy Commissioner has proceeded to recommend the permission to sell the land to the builders under Section 20 of the Act. The application for permission itself had number mentioned the price. The recommendation is in respect of number only 16194 sq. mtrs. but also in respect of 3444 sq. mtrs. It may be mentioned here that the firm had number made any application for exemption or permission to sell the said 3444 sq. mtrs. till at least 24th March, 1987. Yet, the Special Deputy Commissioner recommended in his report of 20/29.1.87 that the earlier exempted land of 16194 sq. mtrs. may be permitted to be sold along with the said 3444 sq. mtrs. He has of companyrse recommended companyditions to be imposed while granting the permission to sell. The State Government has also number independently enquired into the genuineness of the debts, the value of all the assets of the firm held by it in Bangalore, Madras or elsewhere, and whether the debts were as on the date of the companymencement of the Act and whether any of the debts were incurred subsequent to the said date, what was the price at which the land was proposed to be sold, whether the assets other than the land in question companyld number have been sold to meet the debts and if at all it was necessary to sell the land in question, whether the sale only of a part of the land would number have relieved the firm of its obligations. Without such inquiry, the Government by its order in question granted permission to sell 16194 sq. mtrs. of land. Close on the heels, however, followed another order dated 18.4.1987 by which the balance of 3444 sq. mtrs. was permitted to be sold relying upon another report of the Special Deputy Commissioner. The record before us shows that the said report is of 27.3.1989. We may, however, presume a typographical error and companystrue it as a report of 27.3.1987.However, what is worth numberhing is that the application for permission to sell the said 3444 sq. mtrs. was filed by the firm allegedly on 24.3.87. It seems that with companymendable alacrity the Special Deputy Commissioner made his report on the said application, on 27.3.1987 if we are to read the year as 1987 instead of 1989 as the document shows. What he has stated in his report may be summarised as under That the Government by its order dated 6.3.1987 had already accorded permission to sell excess vacant land admeasuring 16194 sq. mtrs. The remaining excess vacant land held by the firm is 3444 sq. mtrs. Orders had been passed as required under Section 8 4 of the Act on 9.1.1987 companyfirming the said excess vacant land. In the meanwhile, the firm presented another application on 24.3.1987 to the Government requesting for grant of exemption under Section 20 with permission to sell the said excess land admeasuring 3444 sq. mtrs. and another land admeasuring 5,648 sq. mtrs. which companysisted of land with building as per Section 4 1 b of the Act, to the builders. That the firm stated that they had got the liabilities to the private parties who were for the first time named there. They are 13 in number. The liabilities were shown as having arisen between 20.1.1975 and 7.12.1977 with a specific mention that the liabilities were from a date prior to the companying into force of the Act. These liabilities to the private parties amounted to Rs. 4,11,279.56. In addition to 13 private creditors, Dena Bank is the 14th and the last editor shown there to whom Rs. 65,420.44 were owed from 15.4.1969. The firm had produced certificates from the creditors and a certificate from the auditors in support of the said liabilities. The report ends by stating that in the cir- cumstances explained above, the requests of the firm to grant exemption under Section 20 with permission to sell the said balance vacant land of 3444 sq. mtrs. to the builders may be companysidered. It is number known when the reference of the said application was made to the Special Deputy Commissioner for giving his report. All that is known is that on 18.4.1987, the Government passed an order permitting the firm to sell the land admeasuring 3444 sq. mtrs. on the companyditions mentioned therein. This order also does number discuss, like the earlier order of 6.3.1987, the various factors which need to be companysidered while granting permission to sell. It is, however, number necessary to discuss this aspect of the matter since we are allowing the appeals on the primary ground that the State Government had numberpower to grant permission to the firm to sell the land in question. If, however, it was necessary to go into the said question, it must be stated that there is much force in the companytention of the appellants that the State Government had number applied its mind to the relevant factors relating to the alleged indebtedness of the firm and hence the permission granted to the firm to sell the land was liable to be struck down on that ground also. The first question that arises is whether the provisions of Section 20111 b permit the State Government to permit the sale of the excess vacant land to a third party. According to us, the answer has to be in the negative for reasons more than one. In the first instance, the central object of the Act, as is evident both from the preamble as well as the statement of objects and reasons, is to acquire vacant land in excess of the ceiling area and to prevent speculation and profiteering in the same and also to distribute the land equitably to subserve the companymon good. It is, therefore, per se against the said object to permit the sale of the excess vacant land for whatever reasons, including the undue hardship of the land-holder. To companystrue the provisions of Section 20 1 b so as to read in them the companyferment of such power on the State Government for whatever reasons, is to distort and defeat the whole purpose of the legislation. Further, neither the plain language of the clause number its companytext and intendment merit such companystruction.Section 20 itself is titled Power to exempt. The power given to the State Governments under the Section is only to exempt certain excess vacant lands from the operation of the provisions of Sections 3 to 19 of Chapter III, numbere of which refers to the subject of transfer or restrictions on transfer. Those provisions relate to the calculation, declaration, acquisition and vesting of the excess vacant land. It is Chapter IV which relates to the transfers of vacant lands and the restrictions thereon. Further, from the scheme of the Act, it is evident that the transfers of the vacant land were to be regulated by the specific provisions made in it. They were number to be left to be governed by the unguided discretion of any authority including the State Government. The specific provisions for regulating the transfer have been incorporated in Sections 20 to 28 of the Act. Those provisions permit transfer of only vacant lands within the ceiling limit but without buildings, and of vacant lands in excess of the ceiling limit but with buildings thereon and subject to the companyditions laid down there. It cannot be suggested that in defiance of the said provisions, Section 20 1 b vests power in the State Government to sanction sales of excess vacant lands with or without building thereon. Under Section 20 1 b , the State Government can only exempt such excess vacant land from being acquired by it. The Government cannot permit its transfer when the Act does number even by implication authorises it to do so but permits the transfer subject only to the companyditions prescribed by Section 27. The legislature cannot be presumed to have prescribed different companyditions for transfer of the same or similar lands. Secondly, Section 20 begins with the number-obstante clause numberwithstanding anything companytained in any of the foregoing provisions of this Chapter, meaning thereby Chapter III of the Act. The foregoing provisions of Chapter III viz, Sections 3 to 19, as stated earlier, do number companytain any provision permitting or restricting the transfer of the vacant land in excess of the ceiling limit. The provisions relating to the transfer of the vacant land are companytained in Sections 26 to 28 of Chapter IV. Section 26 lays down restrictions on the transfer of the vacant land even if it is within the ceiling limit, while Section 27 places restriction on the transfer of any urban or urbanisable land with a building or portion of such building thereon for a period of ten years from the companymencement of the Act or from the date on which the building is companystructed, whichever is later, except with the previous permission of the companypetent authority. Section 27 as companyched is wide in its implication and hence this Court by its decision in Bhuimsinghjis case Supral restricted its operation to lands with buildings which are above the ceiling limit. However, the companyrt has upheld the validity of the rest of the Act including that of Section 26. The result is, the restriction on transfer even of vacant land within the ceiling limit but without building is deemed to be valid. Thus the transfer of the vacant land without building even if it is within the ceiling limit and of the vacant land in excess of the ceiling limit with a building or a portion of the building are subject to the restrictions placed by the Act. Section 20, as pointed out earlier, is subject to the provisions of sections which follow it including Sections 26 to 28. Hence numberconstruction can be placed on clause b of sub-section 1 thereof which will be in companyflict with the provisions of Sections 26 to 28. Thirdly, the provisions of clauses a and b of sub- section 1 of Section 20 make it clear that what the legislature has in mind is an exemption for the purposes of the use- of the land and number for the purposes of selling it. Sub-section Ill a speaks of exemption of such land having regard to its location, the purposes for which the land is being or is proposed to be used and such other relevant factors as the circumstances of the case may require. The said provisions further require that even after taking into companysideration the said circumstances, the State Government has to examine, before giving ex- emption, whether it is necessary or expedient in the public interest to do so. The Government is also empowered under the said provisions to grant such exemption companyditionally. Sub-section 1 b similarly, speaks of the undue hardship caused on account of the application of the provisions of Chapter III. Since as per the definition of person in Section 2 i, the said provision is applicable number only to individuals, but also to a family, a firm, a companypany or an association or body of individuals whether incorporated or number, the hardship spoken of there is obviously one related to the user of the land. In fact, it is difficult to understand the precise purpose for which clause b has been enacted and the meaning of the expression undue hardship there. We are left only to speculate on the subject. The speculation itself may number be valid. The lands are held by companypanies, trusts and associations for industrial and companymercial use, for the use of medical and educational institutes, sports, clubs, cultural activities, gardens, exhibitions etc. There is numberspecial provision made in the Act to protect or take care of such users. The only provision under which a relief can be given to preserve and safeguard such user is Section 20 1 a . But that provision can be pressed into service only on the basis of the location of the land and its present or prospective user and only if it passes the test of public interest. However, all lands in excess of the ceiling limit may number strictly be necessary for such user, even if the user is in the public interest. Nevertheless, the withdrawal of a part of the land found to be in excess may cause an avoidable hardship to the land-holder which may be disproportionate to the benefit that is to accrue to the public on account of such withdrawal. The excess of land may be meager or the severance of such excess land itself may result in unnecessary hardship. The hardship further has to be undue and number merely an ordinary hardship which is bound to be caused on account of the application of the Act to every holder of the excess vacant land. The undue hardship must be one which cannot be avoided except by granting a relief of exemption as companytemplated by the said provision. The relief from financial hardship or from indebtedness to the land- holder of such land is alien both to the object and the scheme of the Act. Even the debates in the Parliament do number refer to financial hardship or to the power of the State Government to exempt the land to permit its transfer on that account. To hold that indebtedness and financial hardship would entitle the landholder to get exemption for sale of the excess vacant land in his possession is to place the holders of land with debts in an advantageous position as against those who were unwise enough to manage their affairs with financial discipline. The classification of the owners of land for this purpose between debtors and number-debtors is itself irrational and has numberplausible nexus with the object of the Act. Such a classification is, therefore, discriminatory and violative of Article 14 of the Constitution. It is number, therefore, possible to agree with the view taken by the Gujarat High Court in Thakorbhai Dajibhai Desai v. State of Gujarat, AIR 1980 Guj. 189 that the indebtedness of the land-holder on the date of the companymencement of the Act can be a ground for exemption under Section 20 1 b . Much less can such a ground vest the State Government with the power to permit the sale of the land. As has been explained earlier, under the Act numbertransfer of vacant land in excess of the ceiling limit is permitted whether with or without companydition, if it is number encumbered with a building or a portion of a building. It can either be acquired by the State Government under Section 10 3 of the Act or exempted from being acquired or permitted to be retained under Sections 20, 21 and 22 respectively. It can in numbercase be transferred. However, if it is so encumbered, the provisions of Section 27 become ap- plicable to the transfer of the land and numbertransfer of such land can be effected in companytravention of the provisions of the said section. There is numberhing either in Section 20 or Section 27 which exempts the transfer of such land from the operation of the provisions of Section 27, assuming that Section 20 1 b gives power to the State Government to permit the sale of such land. Fourthly, the exemption which is granted under Section 20 1 b has to be supported by reasons to be recorded in writing. This requirement also companytemplates an exemption which is related to and prompted by the use or better use of the land. If it is the financial hardship which was under the companytemplation of the legislature, there was numberhing easier than to make a reference to the same in clause b itself and to lay down guidelines for the inquiry into such hardship. Fifthly, the provisions of sub-section 2 of Section 20, directly negative either exemption on account of financial hardship or for the purpose of the transfer of the land, since that sub-section empowers the State Government to withdraw the exemption already granted if the State Government is satisfied that any of the companyditions subject to which the exemption is granted either under clause a or clause b of sub-section 1 is number companyplied with. It is inconceivable that the legislature had in mind the cancellation of the transfer including sale, which cannot be done when it has already taken place. Sixthly, as pointed out earlier, when the legislature wanted to provide for sale or transfer of the vacant land, it has done so specifically in Chapter IV which exclusively deals with the Regulation of transfer and use of urban property. Sections 26,27 and 28 of the said Chapter together provide for sales of vacant land and for the registration of such sales. Section 26 restricts the sale of land even if it is within the ceiling limit except after giving numberice in writing of the intended transfer to the companypetent authority. When such numberice is given, the companypetent authority has the first option to purchase the land on behalf of the State Government and at a price calculated in accordance with the provisions of the Land Acquisition Act, 1894 or of any other companyresponding law for the time being in force. It is only when the companypetent authority does number exercise its option to purchase the land within sixty days from the date of receipt of the numberice, that it is lawful for the holder of the land to transfer the same to whomsoever he may like. The provisions of Section 26 further show that the price to be calculated for the purchase of the land when the companypetent authority exercises its option is on the basis that the numberification under sub-section 1 of Section 4 of the Land Acquisition Act or under the relevant provision of any other companyresponding law had been issued on the date on which the numberice was given of the intended transfer by the holder of the land, to the companypetent authority. This provision makes it abundantly clear that the exemption to be granted under Section 20 1 11 b is number for the sale of the excess vacant land. It is difficult to hold that the legislature which places restrictions on the transfer of the land within the ceiling limit would at the same time give a carte blanch for the sale of the land in excess of the ceiling limit. For it would mean, firstly, that the State Government cannot have an option to purchase such land and secondly the sale can be made by the holder of the excess land at any price that he chooses. In the first instance, such a reading of Section 20 Ill b would militate against one of the objects of the Act, viz., to prevent speculation and profiteering in the sale and purchase of land. Secondly, it would be patently discriminatory. Whereas the holder of vacant land within the ceiling limit would have to suffer the restrictions placed by Section 26, the holder of the vacant land in excess of the ceiling limit has number to do so. He would in fact be in a better position. The provisions with regard to granting such exemption subject to certain companyditions companytained in Section 20 1 b do number in any way mitigate the discrimination. Firstly, when the statute itself places specific restrictions under Section 26 on the sale of land within the ceiling limit, it is number possible to hold that the companyditions on which the State Government is empowered to permit the sale can be left to the discretion of the State Government. In fact, such discretion given to the State Government would itself be violative of Article 14 of the Constitution the same being unguided and untrammeled. This also shows that the legislature has number given power to the State Government under Section 20 ill b to permit exemption for sale of the land. Otherwise it would have provided in the section itself for the companyditions on which the permission to sell can be given and such companyditions companyld number be less onerous than those provided under Section 26 of the Act. Secondly, if the power to permit sale of the land was intended to be given only for relieving the land-holder of his financial hardship, the section companyld very well have provided for sale of such land under Section 26 of the Act or made provision in Section 20 ill b itself for the first option of the State Government to purchase it. It is number suggested that by number making such provision either in Section 20 111 b or Section 26, the legislature intended to permit the sale of such land at a price above the fair market price payable under the Land Acquisition Act, 1894 or the companyresponding law and thereby encourage speculation and profiteering, the very evils which the Act intended to curb. Seventhly, section 27 in Chapter IV is another provision which prohibits the transfer of any urban or urbanisable land with a building whether companystructed before or after the companymencement of the Act or a portion only of such building, for a period of ten years from the companymencement of the Act or from the date on which the building is companystructed, whichever is later, except with the previous permission of the companypetent authority. Sub-section 151 thereof again gives the first option to the companypetent authority to purchase such land and at a price either as agreed upon between the companypetent authority and the land-holder or where there is numbersuch agreement at a price to be calculated in accordance with the provisions of the Land Acquisition Act, 1894 or any other companyresponding law for the time being in force. It is only if the option is number exercised within sixty days or the companypetent authority has number refused permission to sell the land that the holder of the land can legally transfer the same to whomsoever he may like. These provisions of Section 27 also militate against the companyferment of the power on the State Government to permit exemption of land for the purpose of its transfer for the same reasons as are based on the provisions of Section 26 discussed above. The provisions of Section 27 refer to any urban or urbanisable land with a building. The vacant land in excess of the ceiling limit may be with or without a building. In fact, the provisions of Section 27 directly negative the companyferment of such power, for the said provisions show, firstly, that the legislature did number want the sale of any urban or urbanisable land with a building whether it is within or without the ceiling limit except in accordance with the provisions of Section 27. For Section 27 speaks of transfer of any urban or urbanisable land with a building or a portion only of such building, only with the permission of the companypetent authority and on the terms mentioned therein. This Court, as stated earlier, has invalidated the provisions of the said section to the extent they apply to the vacant land with a building when the land is within the ceiling limit. But it does apply to land in excess of the ceiling limit and with a building or a portion of it thereon. It is number possible to hold that there are two provisions, viz. Section 20 ill b and Section 27 operating at the same time in the same area. For the land permitted to be transferred under Section 20 1 b may also be a land with a building or a portion of a building thereon. In one case the restriction imposed by Section 27 on the transfer would number apply and the State Government will be deemed to have been given power to permit the sale even in companytravention of the provisions of Section 27. In another case, the holder of similar land will have to suffer the restrictions placed by Section 27. There is numberhing either in Section 20 1 b or Section 27 to exclude the operation of the section, as pointed out earlier. Eighthly, the provisions of Section 28 require a special procedure to be followed by the registering officer under the Registration Act, 1908 while registering documents under Section 17 1 a to e of that Act when the transfer of the land is either under Section 26 or Section 27. Section 28 does number make any reference to the transfer permitted by the State Government under Section 20 1 b . In other words, the holder of the vacant land in excess of the ceiling limit has number to face the restriction on the registration of the document of transfer of his land provided under Section 28 when such transfer is permitted by the State Government under Section 20 1 b , whereas the holder of similar lend who does number approach the State Government has to suffer the same when he transfers the land held by him. The discrimination between the transfers under the different provisions is irrational and has numbernexus with the object ought to be achieved by the classification. Lastly, if the power to exempt the land for sale is read in Section 20 1 b with such companyditions as the State Government may choose to place and if either the State Government chooses number to place any companyditions or to place such companyditions as are inconsistent with the provisions of Sections 29 and 30, it would create two sets of lands-one where numberrestriction are applicable to the companystruction thereon or only such restrictions as the State Government may choose to impose, and the other where the restrictions on companystructions as provided by Sections 29 and 30 would be applicable. It is, therefore, more than clear that the provisions of Section 20 11 b do number permit the State Government to exempt vacant land in excess of the ceiling limit for the purposes of transfer. P. SINGH, J. I agree with brother Sawant, J. that it is number possible to hold that State Government can grant exemption under Section 20 1 b of the Act, to the holder of the excess vacant land, so that he may transfer the same in the manner he desires. The object of the Act being imposition of ceiling on vacant land in urban agglomerations and for acquisition of such land in excess of ceiling limit, with a view to prevent the companycentration of urban land in the hands of a few persons, speculations and profiteering therein, will that object be number defeated if it is held that power under Section 20 1 of the Act can be exercised by the State Government to exempt the excess vacant lands, from the application of Chapter III of the Act, so that the holder thereof can transfer such lands? Sub-section 1 of section 20 is in two parts. The exemption under clause a of the said sub-section is to be granted in the public interest whereas under clause b the exemption is to be granted taking into companysideration the undue hardship of the holder of the land in excess of the ceiling limit. Both the expressions public interest and undue hardship are company- prehensive in nature. But at the same time, it is number easy even for companyrts to say as to whether under different circumstances the exemption was in the public interest or was necessary in the interest of the holder of the .land because of his undue hardship. Under Indian companyditions expression undue hardship is numbermally related to economic hardship. That is why from time to time many holders of lands in excess of the ceiling limit, while claiming exemption under clause b put forth their bad economic companydition and indebtedness to claim exemption along with permission to sell such excess lands. In the modern set up many holders of such excess lands having undertaken companymercial or industrial ventures with the help of the loans from the Banks and other financial institutions, put the plea of repayment of such loans as undue hardship for claiming exemption under clause b of section 20 1 aforesaid. How the holders of excess lands having incurred losses or having failed to discharge their debts can claim exemption on the ground of undue hardship in such a situation? Section 4 while fixing the ceiling limit, under subsection 3 takes numbere of the fact that where in respect of any vacant land any scheme for group housing has been sanctioned by an authority companypetent in this behalf immediately before the companymencement of this Act, then, the person holding such vacant land at such companymencement shall be entitled to companytinue to hold such land for the purpose of group housing. But at the same time under sub-section 4 of section 4 it has been specified that if on or after the 17th day of February, 1975, but before the appointed day, any person has made any transfer by way of sale, mortgage, gift, lease or otherwise other than a bona fide sale under a registered deed for valuable companysideration of any vacant land held by him and situated in such State to any other person, whether or number for companysideration, then, for the purposes of calculating the extent of vacant land held by such person the land so transferred shall be taken into account, without prejudice to the rights or interests of the transferee in the land so transferred. Similarly in section 5 it has been provided that where any person who had held vacant land in excess of the ceiling limit at any time during the period companymencing on the appointed day and ending with the companymencement of this Act, has transferred such land or part thereof by way of sale, mortgage, gift, lease or otherwise, the extent of the land so transferred shall also be taken into account in calculating the extent of vacant land held by such person. When different provisions take into companysideration the lands already transferred by the holder, i between the period 17th February, 1975 and the appointed day ii as well as between the period companymencing from the appointed day and ending with the companymencement of the Act, it should number be easily inferred that the framers of the Act desired that after the companymencement of the Act while exercising the power of exemption under section 20 1 b permission should be granted to holders of such excess lands to transfer such lands to third parties in order to meet their financial liabilities. Section 21 is yet another provision in the Act under which excess vacant land is number to be treated as excess. Under the said Section exemption is to be granted in respect of such excess vacant land, if the holder undertakes to utilise the same for the companystructions of dwelling units for accommodation of the weaker sections of the society in accordance with the scheme approved by the companypetent authority or the State Government subject to such terms and companyditions as may be prescribed. If Section 21 provides for granting exemption in respect of excess land held by the holder only on a specific companydition that the holder shall utilise the same for the companystruction of dwelling units for weaker section, to serve a public cause, how the framers of the Act companyld have companyceived the grant of exemption under Section 20 1 b to the holder of the excess land, only to serve his interest, by selling such excess lands. If it is held that the State Government can exempt the vacant land held by the land holder in excess of the ceiling limit, from the applicability of the provisions of Chapter III of the Act, in order that the said holder sells such land to liquidate his debts which amounts to an undue hardship, then there will be an apparent companyflict between the interest of the land holder and the public interest. In the interest of the land holder the maximum price fetched by sale of such land will be the solution of his hardship, whereas that will run companynter to the object of the Act to prevent speculations and profiteering. It is futile to urge that even in such transfers the dominant purpose of the legislation to prevent the companycentration of urban land in hands of few persons is numbere the less served. The companycentration of urban land in hands of few persons has to be prevented with a view to bring about an equitable distribution of land in urban agglomerations to subserve the companymon good. Section 23 prescribes the priorities for disposal or distribution of excess vacant lands after such lands vest in the State under the provisions of the Act. In the case of Bhim Singhji v. Union of India, 1981 1 SCC 166, it has been said- The definition of the word industry in clause b of the Explanation to that section is undoubtedly unduly wide since it includes any business, profession, trade, undertaking or manufacture. If sub-section 1 of Section 23 were to stand alone, numberdoubt companyld have arisen that the Urban Land Ceiling Act is a facade of a social welfare legislation and that its true, though companycealed, purpose Is to benefit favored private individuals or associations of individuals. But the preponderating provision governing the disposal of excess vacant land acquired under the Act is the one companytained in sub-section 4 of Section 23 whereby all vacant lands deemed to have been acquired by the State Government under the Act shall be disposed of to subserve the companymon good. The provisions of sub-section 4 are subject to the provisions of sub-sections 1 , 2 and 3 but the provisions of sub-section 1 are enabling and number companypulsive and those of sub-sections 2 and 3 are incidental to the provisions of sub-section 1 . The disposal of excess vacant lands must therefore be made strictly in accordance with the mandate of sub-section 4 of Section 23, subject to this, that in a given case such land may be allotted to any person, for any purpose relating to, or in companynection with, any industry or for the other purposes mentioned in sub-section 1 , provided that by such allotment, companymon good will be subserved. The governing test of disposal of excess land being social good, any disposal in any particular case or cases which does number subserve that purpose will be liable to be struck down as being companytrary to the scheme and intendment of the Act. If the vacant lands which have vested in the State are also to be disposed of strictly keeping in view the spirit and object of the Act, how under section 20 1 b exemption can be granted to holders of such lands to dispose of such lands in the manner they like, the persons they prefer, the price they dictate, for clearing their debts? If it is companyceded that indebtedness amounts to an undue hardship, then it may companyer the debts incurred even after the companymencement of the Act. The ceiling limit has been fixed by section 3 with reference to the date of the companymencement of the Act, but exception can be granted till such excess lands vest in the State Government under sub-section 3 of section 10, after publication of the numberification, in terms of the said sub- section. Although it was number possible even for the framers of the Act to exhaustively indicate as to what shall be deemed to be undue hardship within the meaning of section 20 1 b but it would have been better, if it had been illustratively indicated, leaving the rest for the companyrts to decide. 20.1 have made numberreference to Section 26 or Section 27 of the Act, while companysidering the question whether on the ground of undue hardship the holder of the excess vacant land can be granted exemption and then permission to sell such excess land, because he is financially crippled or burdened with liabilities. In the case of Blim Singhji v. Union of India supra this companyrt held that Section 27 1 in so far as it imposes restriction on transfer of any urban or urbanisable land with a building or of a portion of such building which is within ceiling area, was invalid. The said sub-section 1 of Section 27 was struck down being unconstitutional. Section 26 of the Act also imposes certain restrictions on transfer of vacant land even within ceding limit. It can be urged that Section 26 1 suffers from the same vice which was pointed out in respect of sub-section 1 of Section 27 of Act, in the aforesaid case of bhim Singhji v. Union of India supra by this Court. But neither in the aforesaid case number in this case this companyrt was or is companycerned with Section 26 and as such, according to me, it is number necessary to express any opinion in respect of Section 26 of the Act, while companysidering the issue involved in the present appeals. ORDER For the reasons given by us above, we are of view that the provisions of Section 20 1 b of the Act do number permit the State Government to give exemption to the vacant in excess of the ceiling limit for the purposes of transferring the same. In view of our companyclusion as above, it is number necessary to go into the further question, viz., if the State Government has such power, in which circumstances it can be exercised and whether financial hardship such as the indebtedness of the land-holder is sufficient to warrant such exemption or number and with respect to which date such indebtedness is to be assessed and in what manner, and whether in the present case, the said aspects of the indebtedness were investigated or properly investigated or number. For this very reason, we also do number propose to go into the other question regarding the mala fides on the part of the authorities while granting permission to the firm to sell the land to the builders in question. 23, Since we have companye to the companyclusion that the State Government has numberpower to grant permission to sell the land under Section 20 1 b , the orders dated 6.3.87 and 18.4.87 granting exemption and permission to the firm for sale of the land are void ab initio having been passed without jurisdiction. Accordingly, the sale-deed dated 30.9.1987 executed by the 2nd respondent firm in favour of the 3rd respondent-builders is held invalid and inoperative, as the respondent-firm had numberlegal right to transfer the land in favour of the builders. We accordiigly allow the appeals and set aside the impugned order of the High Court.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2860 NT of 1979. From the Judgment and Order dated 8.3.1979 of the, Patna High Court in Civil writ jurisdiction case No.2909 of 1978. A. Babde, R.F. Nariman and Ms. Kamakshi For Gagrat Co. for the appellant. Dr. S. Narayan P. Parmeshwaran and Manoj Prasad for the Respondents. The Judgment of the Court was delivered by, VENKATACHALA, J. The short, question which needs our decision in this appeal by special leave is whether a person who credits to the account of or pays to a companytractor any sum payable by any of the organisations specified in section 194C 1 of Income Tax Act, 1961 the Act for carrying out any work including supply of labour for carrying out any work in pursuance of a companytract between the companytractor and the specified organisation is liable to deduct two per cent of such sum as income tax as required under that sub- section. The facts which, have lad to the need for our decision on the said question are briefly these. The Associated Cement Company Ltd. the appellant, issued a letter dated 5th November, 1973 to Mr.S.P Nag companytractor Jhiakpani Containing the terms and companyditions of a companytract of leading packed cement bags,from its Packing Plants. Nos.1 2 into wagons or trucks. Under clause. 12 of those terms and companyditions, there was a stipulation that the companytractor shall be paid a sum for his work at a flat rate of 41 paise for such tonne of cement handled in Packing Plant No.1. and 30 paise for each, tonne o f cement handled in Packing Plant No.2. Clause 13 thereof, which companytained a recital that the rate of loading in clause 12 had been worked out on the basis of daily basic wages of Rs.2.35 paise, D.A. of Rs. 1.21 paise and H.R.A. of Rs.0.50 paise, per day per worker stipulated a term of reimbursement by the appellant to the companytract of the difference in D.A. over the amount of Rs.1.21 paise and annual increment etc. payable from month to month to every worker by him as per the Second Wage Board Recommendation. As the companytractor carried out his work according to the terms and companyditions in the companytract during the years 1973- 74 and 1974-75, the appellant made payments of the sums payable to him under clause 12 of the companytract and the sums reimbursable to him under clause 13 thereof But the deductions made under section 194C 1 of the Act by the appellant out of the sums paid or reimbursed to the companytractor fell short of the deductions required to be made thereunder. As the appellant took the stand that it was number liable to deduct any amount under section 194 1 , out of the sums paid on its behalf to the companytractor as per clauses 12 13 of the companytract, the Income Tax Officer, Jamshedpur, served on the principal officer of the appellant a numberice dated 30th March, 1978 to show cause as to why action should number be taken against the appellant under sections 276B 1 , 281 and 221 of the Act in respect of assessment years 1973- 74 and 1974-75 for short deductions out of the sums paid to companytractor without observing the requirement of section 194C 1 of the Act. Another numberice dated 8th May, 1978.relating to the assessment years 1974-75 to 1977-78 of a similar nature, was also served on the principal officer of the appellant. The appellant, although impugned both the said numberices in a Writ Petition filed under Articles 226 and 227 of the Constitution before the High Court of Judicature at Patna, that Writ Petition was dismissed by the High Court by its order dated 8th March, 1979. The appellant has, therefore, filed this appeal by special leave before this Court seeking the quashing of the numberices which it had unsuccessfully impugned before the High Court, in its Writ Petition. It was argued by Mr. V.A. Bobde, the learned senior companynsel appearing for the appellant, that the amount deductible under section 194C 1 out of the sums credited to the account of or paid to a companytractor would arise only when such sums are paid, on account of a companytractor executing a works companytract, that is, a companytract which produces a tangible property. According to him, the work for the the carrying of which the sum is required to be credited to the account of or paid to a companytractor under section 194C 1 of the Act is only a works companytract and hence deduction under that sub-section companyld arise only to the extent where the sum credited to the account of or paid to a companytractor for executing such works companytract is companyprised of the element of income profit of the companytractor, as held by this Court in Brij Bhushan Lal Parduman Kumar etc. v. Commissioner of Income Tax Haryana, Himachal Pradesh and New Delhi-III, 1979 2 SCR 16 and number otherwise. It was also his argument that the words in the sub-section on income companyprised therein, appearing immediately after the words deduct an amount equal to two per cent of such sum as income-tax found in the companycluding part of that sub-section, must be taken to mean the percentage amount deductible on the income received by the companytractor under the companytract and number on the sum credited to the account of or paid to the companytractor in pursuance of the companytract. These arguments were, however, strongly refuted by Dr. S. Narayan, the learned companynsel for the Revenue. It is how, the question mentioned at the outset needs our decision. Section 194C 1 of the Income Tax Act on the proper companystruction of which the decision on the aforesaid question should necessarily rest, runs thus 194C 1 . Any person responsible for paying any sum to any resident hereafter in this section referred to as the companytractor for carrying out any work including supply of labour for carrying out any work in pursuance of a companytract between the companytractor and a the Central Government or any State Government or b any local authority or c any companyporation established by or under a Central, State or Provincial Act or d any companypany-, or e any companyoperative society-, or f any authority, companystituted in India by or under any law, engaged either for the purpose of dealing with and satisfying the need for housing accommodation or for the purpose of planning, development or improvement of cities, towns and villages, or for both or g any society registered under the Societies Registration Act, 1860 21 of 1860 or under any law companyresponding to that Act in force in any part of India or h any trust or any University established or incorporated by or under a Central, State or Provincial Act and an institution declared to be a University under section 3 of the University Grants Commission Act, 1956 3 of 1956 , shall, at the time of credit of such sum to the account of the companytractor or at the time of payment thereof in cash or by issue of a cheque or draft or by any other mode, whichever is earlier, deduct an amount equal to two per cent of such sum as income-tax on income companyprised therein. No ambiguity is found in the language employed in the subsection. What is companytained in the sub-section, as appears from its plain reading and analysis admit of the following formulations A companytract may be entered into between the companytractor and any of the organisations specified in the sub-section. Contract in Formulation 1 companyld number only be for carrying out any work but also for supply of labour for carrying out any work. Any person responsible for paying any sum to a companytractor in pursuance of the companytract in Formulations 1 and 2, companyld credit that sum to his account or make its payment to him in any other manner. But, when the person referred to in Formulation-3 either credits the sum referred to therein to the account of or pays it to the companytractor, he shall deduct out of that sum an amount equal to two per cent as income-tax on income companyprised therein. Thus, when the percentage amount required to be deducted under the sub-section as income-tax is on the sum credited to the account of or paid to a companytractor in pursuance of a companytract for carrying out a work or supplying labour for carrying out a work, of any of the organisations specified therein, there is numberhing in the sub-section which companyld make us hold that the companytract to carry out a work or the companytract to supply labour to carry out a work should be companyfined to works companytract as was argued on behalf of the appellant. We see numberreason to curtail or to cut down the meaning of plain words used in the Section. Any work means any work and number a works-contract, which has a special companynotation in the tax law. Indeed, in the sub- section, the work referred to therein expressly includes supply of labour to carry out a work. It is a clear indication of legislature that the work in sub-section is number intended to be companyfined to or restricted to works companytract. Work envisaged in the sub-section, therefore, has wide import and companyers any work which one or the other of the organisations specified in the sub-section can get carried out through a companytractor under a companytract and further it includes obtaining by any of such organisations supply of labour under a companytract with a companytractor for carrying out its work which, would have fallen outside the work, but for its specific inclusion in the sub-section. In Brij Bhushan supra this Court was companycerned with the question whether the companyt of materials supplied by the Government for being used in execution of works is liable to be taken into companysideration while estimating the income or profits of a companytractor. That question was answered by this Court, thus It is true that ordinarily when a works companytract is put through or companypleted by a companytractor the income or profits derived by the companytractor from such companytract is determined on the value of the companytract as a whole and cannot be determined by companysidering several items that go to form such value of the companytract but in our view where certain stores material is supplied at fixed rates by the Department to the Contractor solely for being used or fixed or incorporated in the works undertaken on terms and companyditions mentioned above, the real total value of the entire companytract would be the value minus the companyt of such stores material so supplied. Therefore, since numberelement of profit was involved in the turnover represented by the companyt of stores material supplied by the M.E.S. to the assessee firms, the income or profits derived by the assessee firms from such companytracts will have to be determined on the basis of the value of the companytracts represented by the cash payments received by the assessee firms from the M.E.S. Department exclusive to the companyt of the material stores received for being used, fixed or incorporated in the works undertaken by them. The above decision cannot be of any help to the appellant for it does number lay down that the percentage amount deductible under section 194C 1 should be out of the income of the companytractor from the sum or sums credited to the account of or paid to him. The words in the sub-section on income companyprised therein appearing immediately after the words deduct an amount equal to two per cent of such sum as income-tax from their purport, cannot be understood as the percentage amount deductible from the income of the companytractor out of the sum credited to his account or paid to him in pursuance of the companytract. Moreover, the companycluding part of the sub-section requiring deduction of an amount equal to two per cent of such sum as income-tax, by use of the words on income companyprised therein makes it obvious that the amount equal to two per cent of the sum required to be deducted is a deduction at source. Indeed, it is neither possible number permissible to the payer to determine what part of the amount paid by him to the companytractor companystitutes the income of the latter. It is number also possible to think that the Parliamer companyld have intended to cast such impossible burden upon the payer number companyld it be attributed with the intention of enacting such an impractical and unworkable provision. Hence, on the express language employed in the sub-section, it is impossible to hold that the amount of two per cent required to be deducted by the payer out of the sum credited to the account of or paid to the companytractor has to be companyfined to his income companyponent, out of that sum. There is also numberhing in the language of the sub-section which permits exclusion of an amount paid on behalf of the Organisation to the companytractor according to clause 13 of the terms and companyditions of the companytract in reimbursement of the amount paid by him to workers, from the sum envisaged therein, as was suggested on behalf of the appellant. For the foregoing reasons, our decision on the question under companysideration, is held in the affirmative and in favour of the Revenue. In the result, this appeal fails and is dismissed directing the appellant to pay the companyts of the respondent the Revenue in this appeal. Advocates fee is fixed at Rs-3000.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1094 of 1992. WITH Civil Appeal No.1095 of 1992. AND Civil Appeal No. 1096 of 1992. From the Judgment and Order dated 4.2.92 24.2.92 of the Bombay High Court in W.P. Nos.11, 8 70 of 1992. K. Garg, Ram Jethmalani, V.A. Bobde,Harish N. Salve, K.J. John, Ms. Deepa Dixit, Rakesh Gosain, Ms. Rani Jethmalani, K. Dev and Ms. Shanta Ramchand for the Appellants. Ashok Desai, F.S. Nariman, R.F. Nariman, P.H. Parekh, Sunil Dogra, J.D. Dwarka Das and S.C. Sharma for the Respondents. The Judgement of the Court was delivered by VERMA, J. These appeals, by special leave, arise from writ petition Nos.11 of 1992,8 of 1992 and 70 of 1992, all dismissed by the Bombay High Court at the Goa Bench merely on the ground of laches and they involve for decision the companymon question relating to the power of review, if any, of the Speaker to review his decision on the question of disqualification of a Member of the House, rendered under the Tenth Schedule to the Constitution. In those writ petitions, the orders passed by the Speaker, in purported exercise of the power of review, setting aside the earlier orders of disqualification of certain Members made on merits by the Speaker, were challenged on the ground that the Speaker has numbersuch power of review. The High Court took the view, that the writ petitions were filed after companysiderable delay, and, therefore, upholding the preliminary objection, had to be dismissed merely. on the ground of laches and, therefore, merits of the companytention that the Speaker had numbersuch power of review was number companysidered. The main questions which arise for decision in these appeals are, therefore, two namely LACHES Are the impugned orders of the High Court dismissing the writ petitions merely on the ground of laches susceptible to interference under Article 136 of the Constitution in the present case and POWER OF REVIEW If so, does the Speaker, acting as the authority under the Tenth Schedule of the Constitution, have numberpower of review, so that any order made by him in purported exercise of the power of review is a nullity? The further question of the companysequence and nature of relief to be granted, would arise only if these questions are answered in favour of the appellants. Ravi S. Naik, Ratnakar M. Chopdekar and Sanjay Bandekar were duly elected Members of the Goa Legislative Assembly in the elections held in November, 1989. On 25.1.1991, Ravi S. Naik assumed the office of the Chief Minister of the State of Goa and he formed his Council of Ministers, which included Chopdekar and Bandekar as Ministers. On the same day, i.e. on 25.1.1991, Dr. Kashinath Jalmi, also a Member of the Legislative Assembly, presented a petition to the Speaker, Surendra V. Sirsat seeking disqualification of Ravi Naik as a Member of the Legis- lative Assembly on the ground that he had voluntarily given up the Membership of his political party. On 16.2.1991, the Speaker, Surendra V. Sirsat passed an order under para 6 of the Tenth Schedule to the Constitution, disqualifying Ravi Naik on the ground of defection. On 16.2.1991, Ravi Naik filed writ petition No.48 of 1991 at the Goa Bench of the Bombay High Court challenging the order of his disqualification, made by the Speaker under the Tenth Schedule to the Constitution. On 18.21991, the High Court passed an interim order in that writ petition staying operation. of the order of disqualification made by the Speaker. During the pendency of this writ petition, on 27.2.1991, Simon Peter DSouza was elected Deputy Speaker of the Goa Legislative Assembly on 4.3.1991 Surendra V. Sirsat was removed from the office of Speaker and the Deputy Speaker, Simon Peter DSouza began functioning as the Speaker in place of Surendra V. Sirsat. The same day, i.e. on 4.3.1991, Ravi S. Naik made an application to Simon Peter DSouza, the Deputy Speaker functioning as the Speaker of the Goa Legislative Assembly, for review of the order dated 15.2.1991 of his disqualification made by the Speaker, Surendra V. Sirsat under the Tenth Schedule. On 8.3.1991, the Acting Speaker, Simon Peter DSouza made an order, in purported exercise of the power of the- review under the Tenth Schedule, setting aside the order dated 15.2.1991 made by the Speaker, Surendra V. Sirsat disqualifying Ravi S. Naik as a Member of the Goa Legislative Assembly. Thereafter, Writ Petition No.48 1991 filed by Ravi Naik challenging the order of the his disqualification made by the Speaker on 15.2.1991 was dismissed as number pressed by him, on 22.4.1991. On 8.1.1992, Writ Petition No.11 of 1992 was filed by Dr. Kashinath Jalmi and Ramakant Khalap challenging the order of review dated 8.3.1991 passed by the Acting Speaker, inter alia on the ground that the Speaker did number have any power to review the earlier order of disqualification made under the Tenth Schedule to the Constitution of India. The High Court by the order dated 4.2.1992 upheld the preliminary objection of Ravi S. Naik that the writ it petition filed ten months after the date of the impugned order, was liable to be dismissed at the admission stage on the ground of laches. This order, dismissing the writ petition for this reason alone, is challenged in Civil Appeal No. 1094 of 1992. After the dismissal of writ petition No.11 of 1992, another Member of the Goa Assembly, Churchill Alemao filed writ petition No.70 of 1992, also challenging the order of review dated 8.3.1991 made by the Acting Speaker setting aside the earlier order dated 15.2.1991 made by the Speaker disqualifying Ravi Naik, on similar grounds. The High Court dismissed writ petition No.70 of 1992 also at the admission stage, for the same reason, on the ground of laches. Civil Appeal No.1096 of 1992 by Churchill Alemao is against the order dated 24.2.1992 dismissing writ petition No.70 of 1992. On 10.12.1990, Ramakant D. Khalap applied to the Speaker, Surendra V. Sirsat seeking disqualification of Sanjay Bandekar and Ratnakar Chopdekar as Members of the Goa Legislative Assembly, for the defection under the Tenth Schedule. On 11.12.1990, the Speaker served numberices on these Member. On 13.12.1990, Bandekar and Choopdekar filed writ petition No.321 of 1990 at the Goa Bench of the Bombay High Court challenging the show cause numberices issued to them by the Speaker. On the same day i.e. on 13.12.1990, the Speaker, Surendra V. Sirsat made the orders disqualifying Bandekar and Chopdekar as Members of the Assembly, under the Tenth Schedule. On 14.12.1990. Writ Petition No.321 of 1990 was amended to challenge the orders of disqualification dated 13.12.1990 made by the Speaker against Bandekar and Chopdekar. The Writ Petition was admitted by the High Court, and an interim order made staying the orders of disqualification dated 13.12.1990 made by the Speaker. Unlike the writ petition No.48 of 1991 by Ravi Naik which was dismissed as number pressed on 22.4.1991 after the order of review made by the Deputy Speaker, writ petition No.321 of 1990 by Bandekar and Chopdekar is still pending in the High Court with the interim order made therein subsisting. In the meantime, in a manner similar to that in the case of Ravi Naik, the Deputy Speaker functioning as the Speaker, on applications made to him for the purpose, passed orders on 7.3.1991, purporting to exercise the power of review, whereby the orders dated 13.12.1990 made by the Speaker disqualifying Bandekar and Chopdekar under the Tenth Schedule have been set aside. This led to the filing of writ petition No. 8 of 1992 by Ramakant D. Khalap on 7.1.1992 at the Goa Bench of the Bombay High Court, challenging the orders of the review dated 7.3.1991 passed by the Acting Speaker. This writ petition also, has been similarly dismissed merely on the ground of laches on 4.2.1992. Civil Appeal No.1095 of 1992 has, therefore, been filed against dismissal of writ petition No.8 of 1992. This is how the same questions relating to laches justifying dismissal of these writ petitions, and the power of review, if any, of the Speaker under the Tenth Schedule, arise for decision in these appeals. The rival companytentions may number be mentioned. Shri Ram Jethmalani for the appellant in C.A. No.1094 of 1992, Shri Harish Salve for the appellant in C.A. No.1095 of 1992 and Shri R.K. Garg for the appellant in C.A. No.1096 of 1992 advanced substantially similar arguments, to companytend that dismissal of the writ petitions by the High Court on the ground of laches is insupportable, in the present companytext, where challenge to the order of review made by the Speaker under the Tenth Schedule is on the ground of nullity, since the Speaker has numberpower of review under Tenth Schedule, and that the order of review being a nullity, must be so declared. In reply, Shri F.S. Nariman for respondent Ravi Naik in Civil Appeal Nos. 1094 and 1096 of 1992, and Shri Ashok Desai for respondents Bandekar and Chopdekar in Civil Appeal No.1095 of 1992, strenuously urged that the exercise of power under Article 226 of the Constitution being discre- tionary, the refusal to exercise that power at the instance of the writ petitioners was a proper exercise of the discretion, which does number call for any interference by this companyrt in exercise of its power under Article 136 of the Constitution. Both the learned companynsel, in their reply, further submitted, that by the very nature of the high office of the Speaker and the finality attaching to the order made by the Speaker under para 6 of the Tenth Schedule, the power of the review inheres in the Speaker for preventing miscarriage of justice, in situations when the Speaker himself is of the view that companytinuance of his earlier order of disqualification would perpetuate injustice. It was further submitted by them, in the alternative, that in view of the limited scope of judicial review of the Speakers order of disqualification made under para 6 of the Tenth Schedule, as held in the majority opinion in Kihoto Hollohan v. Zachillhu and Ors., 1992 Supp. 2 SCC 651, it is implicit that at least a limited power of review inheres in the Speaker, to companyrect palpable errors outside the scope of the limited judicial review available against the order of disqualification made by the speaker under the Tenth Schedule. It was urged by them, that the alleged infirmities in the orders of disqualification made in the present case by the Speaker fell within, at least this limited power of review which inheres in the Speaker. Shri Nariman, as well as Shri Desai, strongly relied on the majority opinion in Kihoto Hollohan to support these submissions. The last alternative submission of Shri Nariman was, that in case there is numberpower of review in the Speaker under the Tenth Schedule, as a result of which the orders made by the Acting Speaker in purported exercise of that power have to be declared nullity and ignored, then writ petition No.48 of 1991 by Ravi S. Naik being dismissed as number pressed on 22.4.1991 because the order of his disqualification had been set aside by the order of review, must be revived along with the interim stay granted therein to enable Ravi S. Naik to pursue the remedy which he had invoked, to challenge the order of his disqualification which is open to judicial review. This submission of last resort made by Shri Nariman, was strongly opposed by Shri. R.K. Garg appearing for the appellant Church Alemao. On the other hand, Shri Ram Jethmalani appearing for the appellants in C.A. No.1094, number only did number oppose such a direction being given, but in his opening address itself suggested this as the equitable companyrse to adopt. But for the stand taken on this aspect, there was numberdifference in the submissions of Shri Garg and Shri Jethmalani. Both sides attempted to refer to the facts leading to the making of the orders of disqualification of the Members, and the merits thereof However, we do number propose to advert to them, as we had indicated to the learned companynsel at the hearing, since those aspects will have to be gone into , in the first instance by the High Court, on the view we are taking in these appeals and, therefore, we would like to avoid the likelihood of any possible prejudice to either side resulting from any reference made by us to the same. Accordingly, we are companyfining ourselves only to the facts and the arguments relating to the aforesaid two questions, which alone arise before us. We may add, that for the purpose of these appeals, it has been assumed by both sides that the Deputy Speaker functioning as the Speaker would have the powers of the Speaker under the Tenth Schedule including that of review, if any. The further question whether the Deputy Speaker, who discharging the functions of the Speaker, has all the powers of the Speaker under the Tenth Schedule is, therefore, undisputed for the present purpose. We shall number companysider the aforesaid two main questions which arise for decision in the present case. Any further question arising for decision, in case both these questions are answered in favour of the appellants, will be companysidered thereafter. LACHES- The High Court has taken the view that the impugned orders of review having been made by the Acting Speaker on 7th and 8th March, 1991, the writ petitions challenging them filed on 7.1.1992, 8.1.1992 and 10.2.1992 were highly belated and, therefore, liable to be dismissed merely on the ground of laches. It is for this reason that they were dismissed at the admission stage itself, sustaining the preliminary objection taken on this ground by Ravi S. Naik, Chopdekar and Bandekar, in whose favour the orders of review had been made. The High Court has referred to certain decisions of this Court for applying the doctrine of laches, and declined to companysider the merits of the main point raised in the writ petitions, that the Speaker does number have any power of review acting under the Tenth Schedule. The High Court has also held as untenable, the explanation given by the writ petitioners that uncertainty of the law settled only by the decision of this Court in Kihoto Hollohan supra rendered on 12th November, 1991 was the reason for number filing those writ petitions earlier. Learned companynsel for the appellants have assailed application of the doctrine of laches in the present situation, and also companytended that if any explanation was needed for the intervening period, pendency of the question of companystitutional validity of Tenth Schedule itself in this Court was sufficient to explain the period up to the date of the decision, and the writ petitions were filed soon thereafter. It was also submitted by learned companynsel for the appellants, that the companytinuance in office of disqualified persons, even number, provides recurring cause of action, since the companytinuance in office without lawful authority of these persons, one of whom is the Chief Minister of the State of Goa, is against public policy and good administration. It was submitted, the Court cannot decline to examine the validity of the authority under which they companytinue to hold office. On this basis it was urged that the mere delay, if any, in challenging the legality of the authority under which these three persons companytinue to hold office, after being disqualified as Members of the Assembly, companyld number be a valid justification for the High Court to refuse to examine the main question of existence of power of review in the Speaker acting under the Tenth Schedule, since the discretion of the High Court under Article 226 of the Constitution must be exercised judicially, so as number to permit perpetuation of an illegality. Shri Jethmalani also submitted, that the doctrine of laches does number apply where declaration sought is of nullity, in order to prevent its companytinuing operation, and laches is number relevant in the domain of public law relating to public office, where the purpose is to prevent an usurper from companytinuing to hold a public office. Shri Harish Salve adopted these arguments and further submitted that Dr. Kashinath Jalmi and Ramakant Khalap had companysistently taken the stand, that the Speakers order of disqualification is final and number open to review by anyone. He submitted, that for this reason numberprevarication in their stand can be attributed to either of them, as has been done against Churchill Alemao, by the learned companynsel for the respondents, for his support to Ravi Naik during the intervening period. It was further urged by the learned companynsel for the appellants, that the motive and companyduct of the writ petitioners in such matters is number decisive or fatal to the enquiry claimed in the writ petition, in as much as the relief claimed in the writ petition was number for personal benefit of the writ petitioner but for larger public interest and good governance of the State of Goa by persons holding public offices, including that of the Chief Minister, only by lawful authority. Both Shri F.S. Nariman and Shri Ashok Desai supported the Judgment of the High Court, and strenuously urged that the High Court in exercise of its discretionary power under Article 226 of the Constitution was justified in refusing to exercise that power at the behest of the writ petitioners who were disentitled to grant of the relief on account of their companyduct and motive for filing the writ petition. It was submitted by them that the writ petitioners, namely, Churchill Alemao, Dr. Kashinath Jalmi and Ramakant Khalap are all persons who, at different times, were associated with Ravi S.Naik as Chief Minister and were also obtaining benefit from him, which companyduct companypled with their motive of getting more political power to themselves, disentitled them from claiming the relief. Shri Nariman submitted that the doctrine of laches applies equally to a writ of quo warranto, as it does to a writ of certiorari. It was also submitted by learned companynsel for the respondents that the explanation given for the delay in filing the writ petitions, challenging the orders of review made by the Acting Speaker, is facile and untenable It was submitted, that numberwithstanding the pendency of the question of the validity of the Tenth Schedule in this Court, writ petitions were being filed challenging the orders made by the Speakers under the Tenth Schedule. It was submitted that all the writ petitioners, in view of their status in life, were fully aware that the Speakers order of review companyld be challenged by a writ petition, even before the decision rendered by this Court on 12th November, 1991 in Kihota Hollohan. The main thrust of the argument of the companynsel for the respondents was, that in these circumstances the High Court was justified in dismissing the writ petitions at the threshold in exercise of its discretionary power under Article 226 of the Constitution, and, therefore, the power under Article 136 of the Constitution also being discretionary, this Court would be justified in refusing to interfere with the discretion so exercised by the High Court. Having given our anxious companysideration to the forceful submissions of learned companynsel for the both sides, we find ourselves unable to sustain the judgment of the High Court that the writ petitions were liable to be dismissed, merely on the ground of laches. One of the submissions of Shri Nariman was, that even though there is numberperiod of limitation prescribed by statute for filing a writ petition, yet in a case like the present, the apt analogy is of an election petition calling in question an election, which is required to be filed within 45 days from the date of election of the returned candidate, as provided in Section 81 1 of the Representation of the People Act, 1951, to indicate that unless such a challenge is made promptly the companyrts would refuse to examine such a question after the lapse of a reasonable period. On this basis, he argued that a writ petition filed after ten months of the date of the order of review made by the Speaker acting under the Tenth Schedule, must be treated as unduly delayed and is liable to rejection on the ground of laches, as has been done by the High Court in the present case. We are unable to accept this part of the submission since it is number an apt analogy. The remedy of an election petition is statutory, governed by the limitation prescribed therein, unlike the remedy under Article 226 of the Constitution. That apart, the analogy which is more apposite, is the decision on questions as to the disqualification of Members in accordance with Article 103 in the case of a Member of Parliament or Article 192 in the case of a Member of a House of a Legislature of a State. For raising a dispute, giving rise to any question whether a Member of a House has become subject to any of the disqualification mentioned in clause 1 of Article 102 or 191, as the case may be, there is numberprescribed limitation, and so also for challenging the decision rendered under Article 103 or 192 by a writ petition. The question of the disqualification of a Member on the ground of defection and the Speakers order thereon, rendered under the Tenth Schedule, is of a similar nature and number based on the result of an election which can be challenged only by an election petition in accordance with the provisions of Representation of the People Act, 1951. The decision by a companystitution bench in Brundaban Nayak v. Election Commission of India and another, 1965 3 SCR 53 indicates the significance of deciding the question of disqualification of a Member as soon as it arises, even at the instance of a citizen, since the whole object of democratic elections is to companystitute legislative chambers companyposed of members who are entitled to that status, and if any member forfeits that status by reason of a subsequent disqualification, it is in public interest, that the matter was decided. There is numberindication in Brundaban Nayak, that the delay in raising the question of disqualification provides justification for refusing to decide the same, and the emphasis really is on a prompt decision by the companypetent authority on the question being raised, since it is number the interest of the companystituency which such a Member represents, to delay the decision. This decision is an indication that the authority companypetent to decide the question of disqualification must act promptly in deciding the same, once it is raised even by a citizen, in order to prevent a disqualified Member from representing the companystituency after incurring a disqualification subsequent to his election, so long as the question remains a live issue during the tenure of the Member. This aspect is significant for dealing with the question of laches in the present case. In order to justify dismissal of the writ petitions for laches Shri Nariman placed reliance on certain decisions, some of which have been referred by the High Court. Shri Nariman argued that the doctrine of laches applies as much to the writ of quo warranto, as it does to a writ of certiorari, and that the oblique motives of the petitioner together with his companyduct may disentitled him to grant of the relief claimed by such a petition. We number refer to some of these decisions. The basic decision for submission on the doctrine of laches, relied on, is The Lindsay Petroleum Company v. Prosper Armstrong Hurd, Abram Farewell and John Kemp, 1874 L.R. 5 PC 221 which has been followed in the decisions of this Court in The Moon Mills Ltd. v. M.R. Meher, President, Industrial Court, Bombay and Ors., AIR 1967 SC 1450 and Maharashtra State Road Transport Corporation v. Shri Balwant Regular Motor Service Amravati Ors., 1969 1 SCR 808. In The Moon Mills Ltd, a writ of certiorari was sought to challenge a decision affecting the rights of the Petitioner, wherein the question arose whether the petitioner companyld be denied the relief on the ground of acquiescence or laches. In that companytext it was observed that the issue of a writ of certiorari is a matter of sound discretion, and that the writ will number be granted if there is such negligence or omission on the part of the applicant to assert his right as taken in companyjunction with the lapse of time and other circumstances, causes prejudice to the adverse party. It was observed, that the exercise of discretion under Article 226 to issue a writ of certiorari is based on the principle to a great extent, though number identical with, similar to the exercise of discretion in the Court of Chancery. For this principle, involving the doctrine of laches in companyrts of equity, reference was made to the observation of Sir Barnes Peacock in Lindsay Petroleum Co. The decision was followed in, and the principle reitered in Maharashtra State Road Transport Corporation again in the companytext of the discretion under Art. 226 of the Constitution to issue a Wit of certiorari. Like all equitable principles, the doctrine of laches applies where it would be unjust to give a remedy to the petitioner, who is disentitled to grant of the same by his companyduct or any other relevant circumstances, including the creation of third party rights during the intervening period, which are attributable to the laches of the petitioner. Strong reliance was placed on the decision in M s Tilokchand Motichand Ors. v. H.B. Munshi Anr., 1969 1 SCC 110, wherein relief under Article 32 of the Constitution was refused on the ground of delay, to companytend that if delay can be fatal under Article 32, itself a fundamental right, it is more so in a petition under Article 226 of the Constitution, wherein grant of the relief is discretionary. The decision of this Court in Shri Vallabh Glass Works Ltd. and Anr. v. Union of India and Ors., 1984 3 SCC 362 and M s Delhi Rohtas Light Railway Company Lid v. District Board, Bhojpur and Ors., 1992 2 SCC 598 were also cited on the point. In Shri Vallabh Glass Words Ltd, a writ petition by way of alternative remedy was filed after expiry of statutory period of limitation prescribed for filling suit for the same claim, and yet that alone was number held to be fatal taking the view that reasonableness of delay in filing the writ petition is to be assessed having regard to the facts and circumstances of the case, since grant of the relief under Article 226 of the Constitution is a matter of sound judicial discretion and governed by the doctrine of laches. In M s Dehri Rohtas Light Railway Company Limited, Tilokchand Motichands case was distinguished and it was indicated that the test is number to physical running of time and the real test to determine delay in such cases is that the petitioner should companye to the writ companyrt before a parallel right is created. It is significant that all these decisions relate to enforcement of personal rights, wherein a writ of certiorari was claimed for quashing some decision adverse to the petitioner and neither of them related to assertion of a public right in the nature of a class action. In the present case the claim is for the issue of a writ of quo warranto on the ground that Ravi S. Naik, Chopdekar and Bandekar are holding public office, having suffered disqualification as Member of the Assembly subsequent to their election, and of them, Ravi S. Naik companytinues to hold the high public office of Chief Minister of Goa. The relief claimed in the present case is number the companyferment of a personal benefit to the petitioners, but for cessation of the usurpation of public offices held by these persons, if the companytention of the petitioners be right that orders of review setting aside the earlier orders of disqualification made by the Speaker under the Tenth Schedule are nullity The decision of the Privy Council in the Lindsay Petroleum Company was followed by the House of Lords in Emile Erlanger and Ors. v. The New Sombrero Phosphate Company and Ors., 1878 3 Appeal Cases 1218 wherein reliance on the doctrine of laches by Courts of Equity for refusing relief where it would be practically unjust to grant the same, was reiterated. It was also reiterated that two circumstances always important in such cases are the length of the delay and the nature of the acts done during the interval, which might affect the justice of the cause. Once again this principle was reiterated by the Privy Council in Anachuna Nwakobi, The Osha of Obosi and Ors. v. Engene Nzekwu and Anr., 1964 1 WLR 1019 quoting the same passage from The Lindsay Petroleum Company. None of these cases relate to the writ of quo warranto and in them the relief claimed was only for the personal benefit of the claimant. We are number persuaded to hold that on the basis of these decisions, some of which are referred by the High Court, the writ petitions in the present case companyld have been dismissed merely on the ground of laches of the petitioners. We would number refer to the companytention of Shri Nariman that this principle attracting the doctrine of laches equally applies to a writ of Quo Warranto, sought in the present case. For this purpose, Shri Nariman placed reliance on the decision in Everett v. Griffiths, 1924 1 K.B. 941 at 959 in addition to Halsburys Law of England, Fourth Edition, Reissue, Volume 16, Para 926. In Halsburys Law of England the statement of law is based primarily on the decision of the Privy Council in The Lindsay Petroleum Company and those following it. We have already indicated the inapplicability of those decisions in the present case. At the same place one of the decisions referred to, in foot numbere 3 of para 926, is A.G. v. Proprietors of the Bradford Canal 1866 LR 2 Equity Cases 71 for the proposition that Laches is number imputable to the Crown or to the Attorney General suing on behalf of the public. In this decision distinction was drawn between the claim on behalf of the public and that by an individual plaintiff indicating that even though delay or laches may be attributable to an individual plaintiff, it may number be so to an action brought on behalf of the public. This is more so, when the grievance made is that a person companytinues to hold a public office without the authority of law. Shri Nariman laid great stress on Everett v. Griffuths, 1924 1 K.B. 941 at page 959 where it is stated It is plain, however, that in quo warranto proceedings the Court can and will inquire into the companyduct and motives of the relator. Reference is made to a passage from Halsburys Laws of England and some earlier decisions which have been referred for treating the point as well settled. These observations were made after examining the claim on merits, and in view of the fact that the plaintiff was known for his frequent persistent and fruitless litigation proceedings, having companymenced primarily with the motive of resentment. In spite of these strong observations in the judgment about the companyduct and motive of the plaintiff the companyrt did number refuse to go into the points raised, for that reason alone. In our opinion this decision can number persuade us to hold that the dismissal at the admission stage of the present petitions by the High Court, on the ground merely of laches can be sustained, when the alleged usurpation of the public offices, including that of the Chief Minister of the State of Goa, companytinues. Reference was made by Shri Nariman as well as Shri Ashok Desai to Rules 1 and 4 of Order 53 of the Rules of Supreme Court and Section 30 of the Supreme Court Act, 1981 England wherein limitation is prescribed for application for judicial review and delay in applying for relief LS a ground for denying the relief, unless the Court companysiders that there is good reason for extending the period of making the application. It was urged that these provisions are substantially the same as the earlier English Practice according to which, as held in Everett v. Griffuths supra the order is number issued as of companyrse, and the companyduct and motives of the applicant may be enquired into. Reference was also made to R. v. Stratford-on-Avon District Council and Anr., ex parts Jackson 1985 3 All ER 769 which was followed by the House of Lords in Caswell and Another v. Dairy Produce Quota Tribunal for England and Wales 1990 2 WLR 1320. In our opinion, the position remains the same. Emphasis in these decisions is on public interest and good administration, and the jurisdiction of the Court to extend time in suitable cases for making such an application. In Caswell, the House of Lords took into account the larger public interest for the view that the interest of good administration required number-interference with the decision which was challenged after a lapse of a companysiderable time, since any interference at that stage, when third party interests had also arisen, would be detrimental to good administration. In our opinion the exercise of discretion by the companyrt even where the application is delayed, is to be governed by the objective of promoting public interest and good administration and on that basis it cannot be said that discretion would number be exercised in favour of interference where it is necessary to prevent companytinuance of usurpation of office or perpetuation of an illegality. We may also advert to a related aspect. Learned companynsel for the respondents were unable to dispute, that any other member of the public, to whom the oblique motives and companyduct alleged against the appellants in the present case companyld number be attributed, companyld file such a writ petition even number for the same relief, since the alleged usurpation of the office is companytinuing, and this disability on the ground of oblique motives and companyduct would number attach to him. This being so, the relief claimed by the appellants in their writ petitions filed in the High Court being in the nature of a class action, without seeking any relief personal to them, should number have been dismissed merely on the ground of laches. The motive or companyduct of the appellants, as alleged by the respondents, in such a situation can be relevant only for denying them the companyts even if their claim succeeds, but it cannot be a justification to refuse to examine the merits of the question raised therein, since that is a matter of public companycern and relates to the good governance of the State itself Shri R.K. Garg submitted that laches of the appellants can number legitimise usurpation of office by Ravi S. Naik, Chopdekar and Bandekar and Shri Jethmalani submitted that manifest illegatlity will number be sustained solely on the ground of laches when it results in companytinuance in a public office of a person without lawful authority. The fact that the situation companytinues unaltered, since these persons companytinue to hold the public offices, to which they are alleged to be disentitled, is in our opinion sufficient to hold that the writ petitions ought number to have been dismissed merely on the ground of laches at the admission stage, without examining the companytention on merits that these offices including that of the Chief Minister of the State, are being held by persons without any lawful authority. The dismissal of the writ petitions by the High Court merely on this ground can number, therefore, be sustained. The further question number is of the availability of power of review in the Speaker under the Tenth Schedule. POWER OF REVIEW The challenge to the orders dated 7th and 8th March, 1991 made by the Acting Speaker under the purported exercise of power of review, setting aside the earlier orders of the Speaker disqualifying Ravi S. Naik, Chopdekar and Bandekar under the Tenth Schedule, is made by the appellants on the ground that the Speaker does number have any power of review under the Tenth Schedule. It was stated in Patel Narshi Thakershi and Ors. v. Pradyumansinghji Arjunsinghji, AIR 1970 SC 1273, thus It is well settled that the power to review is number an inherent power. It must be companyferred by law either specifically or by necessary implication. This position is number disputed before us. Admittedly, there is numberexpress provision companyferring the power of review on the Speaker in the Tenth Schedule. The only question therefore, is whether the Speaker acting as the authority under the Tenth Schedule has the power of review by necessary implication, empowering him to set aside the earlier order of disqualification made by him on merits. On behalf of the appellants it was companytended that such a power of review in the Speaker can number be implied from the provisions in the Tenth Schedule, and the only remedy available to the aggrieved Member is by judicial review of the order of disqualification. In reply it was companytended on behalf of the respondents, that the power of review inheres in the Speaker under the Tenth Schedule, in view of the finality attaching to the order made under.para 6 of the Tenth Schedule. It was submitted that this inherent power of review in the Speaker must be read in the Tenth Schedule, at least up to 12th November, 1991 when the Judgment in Kihoto Hollohan was rendered declaring the availability of judicial review against the Speakers order of disqualification made under para 6 of the Tenth Schedule. It was further submitted by learned companynsel for the respondents, that only a limited judicial review being available against the Speakers order of disqualification, as held by the majority in Kihoto Hollohan, some power of review inheres in the Speaker even thereafter to companyrect palpable errors falling outside the limited scope of judicial review. It was then submitted, that the defects in the orders of disqualification made by the Speaker in the present case, which were companyrected by review, were such defect which companye within the ambit of the limited power of review available to the Speaker in addition to availability of judicial review as declared in Kihoto Hollohan. Both sides referred to the merits of the orders of dis- qualification made by the Speaker but we refrain from adverting to this aspect as indicated earlier, in view of the companyclusion reached by us that the Speaker has numberpower of review under the Tenth Schedule, and an order of disqualification made by him under para 6 is subject to companyrection only by judicial review as held in Kihoto Hollohan. Accordingly, the alleged defects would require examination by judicial review in the writ petitions filed in the High Court challenging the orders of disqualification. Shri Nariman companytended that the power of review inheres in the Speaker under the Tenth Schedule as a necessary incident of his otherwise plenary jurisdiction to decide the question of disqualification. He submitted that according to the majority in Kihoto Hallohan only limited scope of judicial review is available, and, therefore, the power of review inheres in the Speaker to review his own orders on grounds analogous to those in Order 47, Rule 1, Code of Civil Procedure. In support of this submission Shri Nariman placed reliance on the decisions in Shivdeo Singhs and Ors. v. State of Punjab and Ors., AIR 1963 SC 1909 and Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors. 1981 2 SCR 341. Another limb of Shri Narimans submission is that the majority opinion in Kihoto Hollohan does number declare para 7 of the Tenth Schedule to be unconstitutional from the inception, and Article 13 having numberapplication to a companystitutional amendment, the existence of para 7 in the Tenth Schedule till the judgment was rendered in Kihoto Hollohan on 12th November, 1991 must be accepted, and the provisions in the Tenth Schedule, including para 7 therein, must be examined for determining the implied power of review in the Speaker till 12th November, 1991. On this basis, it was submitted that the finality declared in para 6 of the Tenth Schedule companypled with the ouster of judicial review in para 7 re-enforces existence of the implied power of review in the Speaker at least till 12th November, 1991, prior to which the impugned orders of review were made in the present case. A further submission made by Shri Nariman was that by virtue of para 6 2 read with para 8 of the Tenth Schedule, the general rules of procedure as well as Rule 7 7 of the Members of the Goa Legislative Assembly Disqualification on ground of Defection Rules, 1986 applied, under which the Speaker ordinarily has the power of review. In this companynection, reference was made particularly to Rule 77 of the Rule of Procedure and Conduct of Business of the Goa Legislative Assembly, regarding breach of privilege which enables the Speaker to reconsider his earlier decision, and Rule 7 7 of the Members of the Goa Legislative Assembly Disqualification on grounds of defection Rules, 1986, relating to the procedure. It was submitted that these general rules relating to Speakers power while dealing with a breach of privilege can be read to companyfer an express power of review. The last limb of Shri Narimans companytention may be disposed of, at the outset. There is numberscope for reading into the Tenth Schedule any of the powers of the Speaker which he otherwise has while functioning as the Speaking in the House, to clothe him with any such power in his capacity as the statutory authority functioning under the Tenth Schedule of the Constitution. This is well settled by the decisions of the Court relating to Speakers orders under the Tenth Schedule. Accordingly, any power of the Speaker, available to him while functioning in the House, is number to be treated as his power or privilege as the authority under the Tenth Schedule. The majority opinion in kihoto Hollohan was pressed into service by Shri Nariman as well as Shri Ashok Desai to support several aspects of their submissions. We may number refer to that opinion. In Kihoto Hollohan there was numberdifference between the majority and minority opinions on the nature of finality attaching to the Speakers order of disqualification made under para 6 of the Tenth Schedule, and also that para 7 therein was unconstitutional in view of the number-compliance of the proviso to clause 2 of Article 368 of the Constitution, by which judicial review was sought to be excluded. The main difference in the two opinions was, that according to the majority opinion this defect resulted in the companystitution standing amended from the inception with insertion of the Tenth Schedule minus para 7 therein, while according to the minority the entire exercise of companystitutional amendment was futile and an abortive attempt to amend the companystitution, since Para 7 was number severable. According to the minority view, all decisions rendered by the several Speakers under the Tenth Schedule were, therefore, nullity and liable to be ignored. According to the majority view, para 7 of the Tenth Schedule being unconstitutional and severable, the Tenth Schedule minus para 7 was validly enacted and, therefore, the orders made by the Speaker under the Tenth Schedule were number nullity but subject to judicial review. On the basis of the majority opinion, this Court has exercised the power of judicial review over the orders of disqualification made by the speakers from the very inception of the Tenth Schedule, and the exercise of judicial review has number been companyfined merely to the orders of disqualification made after 12th November, 1991 when the judgment in Kihoto Hollohan was rendered. Venkatachaliah, J as he then was wrote the majority opinion and, thereafter, on this premise, exercised the power of judicial review over orders of disqualification made prior to 12.11.1991. The basic fallacy in the submission made on behalf of the respondents that para 7 must be treated as existing till 12th November, 1991 is that on that view there would be numberpower of judicial review against an order of disqualification made by the Speaker prior to 12th November, 1991 since para 7 in express terms totally excludes judicial review. Accepting the submission of learned companynsel for the respondents that para 7 must be read in the Tenth Schedule till 12th November, 1991 when the judgment in Kihoto Hollohan was rendered, for which submission they place reliance on the majority opinion in Kihoto Hollohan, would amount to taking a view companytrary to the decision in Kihoto Hollohan itself, as indicated. At one stage, Shri Nariman also attempted to read the majority opinion in Kihoto Hollohan as number expressly declaring para 7 in the Tenth Schedule as unconstitutional, adding that such a declaration was made only in the minority opinion which declared the entire Tenth Schedule to be unconstitutional. We are unable to read the majority opinion in this manner. Any attempt to find support for the submissions of the respondents, in the majority opinion in Kihoto Hollohan, is futile. The Constitution Bench decision in Shivdeo Singh and Ors. v. State of Punjab and Ors. supra is distinguishable and of numberassistance to the respondents in the present case. That was a case, wherein the High Court had exercised its power in a second writ petition filed under Article 226 of the Constitution by a person who was number made a party in the earlier writ petition, the order made in which was adverse to him. This companyrt held that the second writ petition by such a person was maintainable, and the High Court had number acted without jurisdiction in reviewing its previous order at the instance of a person who was number a party to the previous writ proceedings. That decision has numberapplication in this situation. Strong reliance was placed by Shri Nariman as well as Shri Ashok Desai on the decision of a two Judge bench in Grindlays Batik Ltd. It was submitted by learned companynsel, that in the present case the defects in the orders of disqualification fell in the first of the two categories mentioned at page 347 SCR , to which extent there is inherent power of review in the Speaker. It may be mentioned that the decision in Patel Narshi Thakershi Ors. Pradyumansinghji Arjunsinghji, AIR 1970 SC 1273 is referred and distinguished at page 347 SCR on the facts of that case. In that decision the question was, whether the Industrial Tribunal companystituted under Section 7A of the Industrial Disputes Act, 1947 had the power to set aside an exparte award made by it. It was held with the aid of Rule 24 b , Industrial Disputes Central Rules, 1957 that the Tribunal had the power of a civil companyrt under Order XVII of the Code of Civil Procedure relating to grant of adjournments and therefore, as a necessary companyollary the power under Order IX, Rule 13 was attracted to enable the Tribunal to set aside an ex parte award. In our opinion, the decision in Grindlays Bank Ltd., wherein certain statutory rules attracted the power under Order XVII read with Order IX, Rule 13 of the Code of Civil Procedure in the Tribunal to set aside an ex parte award, is clearly distinguishable and is of numberassistance in the present case. The power of review which, it is suggested by companynsel for the respondents, inheres in the Speaker by necessary implication has to be found in the provisions made in the Tenth Schedule alone, and number elsewhere. Para 7 has to be treated as number-existent in the Tenth Schedule from the very inception, as earlier indicated. As held by the majority in kihoto Hollohan, judicial review is available against an order of disqualification made by the Speaker under para 6 of the Tenth Schedule, numberwithstanding the finality mentioned therein. It is on account of the nature of finality attaching by virtue of para 6, that the judicial review available against the Speakers order has been labeled as limited in para 110 at page 711 of SCC of the decision in Kihoto Hollohan? 1992 Supp 2 SCC 651, and the expression has to be understood in that sense distinguished from the wide power in an appeal, and numbermore. As held in Kihoto Hollohan, the Speakers order is final being subject only to judicial review, according to the settled parameters of the exercise of power of judicial review in such cases, which it is number necessary to elaborate in the present companytext. The existence of judicial review against the Speakers order of disqualification made under para 6 is itself a strong indication to the companytrary that there can be numberinherent power of review in the Speaker, read in the Tenth Schedule by necessary implication. The need for companyrection of errors in the Speakers order made under the Tenth Schedule is met by the availability of judicial review against the same, as held in Kihoto Hollohan. In our opinion there is numbermerit in the submission that the power of review inheres in the Speaker under the Tenth Schedule as a necessary incident of his jurisdiction to decide the question of disqualification or that such a power existed till 12th November, 1991 when the decision in Kihoto Hollohan was rendered or at least a limited power of review inheres in the Speaker to companyrect any palpable error outside the scope of judicial review. CONSEQUENCE On the above view taken by us, the orders dated 7th and 8th March, 1991 made by the Acting Speaker in purported exercise of the power of review are liable to be declared nullity and to be ignored, with the result that the order dated 13th December, 1990 disqualifying Chopedekar and Bandekar and dated 15th February, 1991 disqualifying Ravi S.Naik as Members of Goa Legislative Assembly would companytinue to operate. Writ petition No.321 of 1990 filed by Chopdekar and Bandekar challenging the orders of their disqualification is pending in the High Court wherein an interim order staying the operation of their orders of disqualification is subsisting. Chopdekar and Bandekar can pursue that remedy to challenge their disqualification and numberfurther order is required to be made by this Court for that purpose. However, writ petition No.48 of 1991 which was filed in the High Court by Ravi S. Naik challenging his disqualification, wherein also an interim order was made staying the operation of the order of his disqualification, was number pressed by Ravi S.Naik after the order in purported exercise of power of review was made in his favour on 8th March, 1 991 and, therefore, that writ petition was dismissed as number pressed on 22.4.1991. The question is of the order, if any, required to be made by this Court in this situation. Shri Ram Jethmalani appearing for the appellants in C.A. No.1094/92 suggested that, in all fairness writ petition No.48 of 1991 should be revived in the High Court to enable Ravi S.Naik to pursue his remedy of seeking judicial review against his disqualification. On the other hand, Shri R.K. Garg, learned companynsel for the appellant in Civil Appeal No.1096/92 opposed the making of such an order. Both the learned companynsel, however. submitted that the interim order of stay made therein would number revive even if that writ petition is revived and the High Court will have to companysider Afresh the question of making an interim order, at the behest of Ravi S. Naik. On the other hand, Shri F.S. Nariman appearing for Ravi S. Naik in both these appeals submitted that it would be just in the circumstances of the case, to revive writ petition No.48 of 1991 for decision on merits by the High Court and the interim order of stay should also enure to the benefit of Ravi S. Naik during the pendency of the writ petition, more so when he is the Chief Minister of the State and refusal of stay would result in uncertainty in the State. Having given our anxious companysideration to the matter we have numberdoubt that the fact to Ravi S. Naik being the Chief Minister of the State of Goa is a wholly irrelevant circumstance for this purpose. All the same an order which would be just and proper to make in the circumstances of this case has to be made, taking into account also the fact that the law was declared and came to be settled only by the decision of this Court in Kihoto Hollohan, after making of the orders of review by the Acting Speaker in the present case, where after writ petition No.48 of 1991 was dismissed as number pressed. We have numberdoubt that Article 142 of the Constitution enables us, if necessary, to enlarge the powers of this Court for making an order which would be just in the facts and circumstances of this case. In our opinion, it would be appropriate to revive writ petition No.48 of 1991 for hearing on merit by the High Court as suggested even by Shri Ram Jethmalani, and to also order interim stay of the operation of the order of disqualification dated 15.2.1991 made by the Speaker, which was the situation prevailing till that writ petition was dismissed as number pressed. It is, however, necessary that writ petition No.48 of 1991 and also writ petition No.321 of 1990 should be heard and disposed of at the earliest, on account of their expediency. RELIEF Accordingly, we allow these appeals in the following manner The impugned orders of the High Court, dated 4.2.1992 dismissing writ petition No.11 of 1992 dated 24.2.1992 dismissing writ petition No.70 of 1992 and dated 4.2.1992 dismissing writ petition No.8 of 1992 are set aside Writ petition Nos.11 of 1992, 70 of 1992 and 8 of 1992 are allowed declaring that orders dated 7.3.1992 and 8.3.1992 made by the Acting Speaker in purported exercise of power of review are nullity and liable to be ignored. Consequently, orders dated 13.12.1990 made by the Speaker disqualifying Ratnakar Chopdekar and Sanjay Bandekar companytinue to operate and writ petition No.321 of 1990 pending in the High Court has to be heard and decided on merits, in accordance with law Similarly, order dated 15.2.1991 made by the Speaker disqualifying Ravi S. Naik companytinues to operate and writ petition No.48 of 1991 filed in the High Court by him is revived by setting aside the High Courts order dated 24.2.1991 dismissing that writ petition as number pressed. The High Court will proceed to decide that writ petition also on merits, in accordance with law-, The interim order staying the order of disqualification in writ petition No.48 of 1991 is revived. However, the parties would be at liberty to apply to the High Court for modification or cancellation of the said interim order or for any other interim relief or direction, if so advised The High Court should hear and dispose of the writ petition No.48 of 1991 itself on merits as expeditiously as possible, preferably by 30th April, 1993 Writ Petition No321 of 1990 filed by Ratnakar M. Chopdekar and Sanjay Bandekar pending in the High Court be also heard and disposed of as expeditiously as possible, preferably by 30th April, 1993. Parties are directed to appear at the Goa Bench of the Bombay High Court on 6th April, 1993, without any further numberice, for obtaining further directions in this behalf. In the circumstances of the case, the parties will bear their own companyts.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 2640-41 of 1991. From the Judgment and Order dated 3.6.1991 of the Himachal Pradesh High Court in Election Petition Nos. 1 2 of 1990. K. Ganguli, B.T. Kaul, Sarvesh Bisaria and S.K. Bisaria for the Appellant. Dutta and R. Sasiprabhu for the Respondents. The Judgment of the Court was delivered by C. AGRAWAL, J. These appeals have been filed under section 116-A of the Representation of the People Act, 1951. They relate to election to the Himachal Pradesh Legislative Assembly from 60- Chachiot Assembly companystituency held during February, 1990. The appellant was declared elected to the Legislative Assembly from the said companystituency. His election was challenged by the respondents in these appeals by filing election petitions in the High Court of Himachal Pradesh. By its judgment dated June 3, 1991, the High Court has allowed the election petitions and has set aside the election of the appellant on the ground that the numberination of one of the candidates, Shri Karam Singh was improperly rejected by the returning officer. The last date for filing the numberination papers was February 2, 1990 and the scrutiny of the numberination papers was fixed for February 5, 1990. Fifteen persons, including the appellant and Shri Karam Singh had filed numberination papers. At the time of scrutiny, an objection was raised on behalf of one of the candidates against the numberination of Shri Karam Singh on the ground that he was holding the office of Chairman, Himachal Pradesh Khadi and Village Industries Board, which is an office of profit within the meaning of Article 191 1 a of the Constitution and was, therefore, disqualified for being chosen as a member of the Legislative Assembly. By order dated February 7, 1990, the Returning Officer upheld the said objection and rejected the numberination of Shri Karam Singh. The High Court has, however, found that the said rejection of numberination of Shri Karam Singh was improper because on the date of scrutiny Shri Karam Singh was number holding an office of profit and has, for that reason, set aside the election of the appellant. Before we proceed to deal with the appeals on merits, it may be mentioned that during the pendency of these appeals before this companyrt, the Himachal Pradesh Legislative Assembly has been dissolved. This raises the question whether the matters in issue in these appeals have ceased to be living issues and have become wholly academic. The effect of dissolution of the legislature on a pending election appeal has been companysidered by this companyrt in Loknath Padhan v. Birendra Kumar Sahu, 1974 3 SCR 114. In that case, the election of the returned candidate was challenged before the High Court on the ground that there was a subsisting companytract entered into by the respondent in the companyrse of his trade and business with the State Government for the execution of works undertaken by the Government and he was, therefore, disqualified under section 9A of the Representation of the People Act, 1951. The election petition was, however, dismissed by the High Court and while the appeal against the said decision was pending in this Court, the Legislative Assembly was dissolved. A preliminary objection was raised on behalf of the respondent to the appeal that in view of the dissolution of the assembly it was academic to decide whether or number the respondent was disqualified under section 9A. Upholding the said preliminary objection, this companyrt has held that the companyrt should number undertake to decide an issue unless it is a living issue between the parties and if an issue is purely academic, in that its decision one way or the other would have numberimpact on the position of the parties, it would be waste of public time and indeed number proper exercise of authority for the companyrt to engage itself in deciding it. In that case, this companyrt drew a distinction between a case where the challenge to the election is on a ground companyfined to the validity of that election only and having numberconsequences operating in future and a case involving challenge to the election on a ground which would entail electoral disqualification for the future, such as, charge of companyrupt practice. It was held that if the election is challenged on the ground of companymission of a companyrupt practice the dissolution of the legislature would number have any effect on the pendency of an election petition or an appeal arising therefrom and the said petition will have to be companysidered on its merits whereas a challenge to the election on any other ground which does number entail future disqualification would raise academic issue only and in view of the dissolution of the legislature the election petition or the appeal arising therefrom would number survive because it would be futile and meaningless for the companyrt to decide an academic question the answer to which would number affect the position of one party or the other. Although in the instant case the election is number challenged on the ground of companymission of any companyrupt practice and a finding would number result in electoral disqualification in future but- the present case differs from the case of Loknath Padhan v. Birendra Kumar Sahu supra in the sense that in Loknaths case the election petition was dismissed whereas in the present case the election petitions against the election of the appellant have been allowed and the election has been set aside. It has been submitted by Shri K. Ganguli, the learned Senior companynsel appearing on behalf of the appellant, that in view of the fact that the decision of the High Court setting aside his election, the appellant may be required to refund the various allowances that he has received while he was functioning as a member of the Legislative Assembly after his election till the decision of the High Court. It would thus appear that invalidation of the election of the appellant may give rise to the liability to refund the allowances received by the appellant as a member of the Legislative Assembly. It cannot, therefore, be said that the question a rising for companysideration in this appeal are purely academic in nature. In these circumstances, it becomes necessary to go into the merits of these appeals. The relevant facts relating to the rejection of the numberination of Shri Karam Singh are as under. The Himachal Pradesh Khadi and Village Industries Board hereinafter referred to as the Board . has been established by the Government of Himachal Pradesh under Section 3 of H.P. Khadi and Village Industries Board Act, 1966 hereinafter referred to as the Act . Section 4 provides for the companystitution of the Board and in sub-s. 1 , it is laid down that the Board shall companysist of number less than three and number more than nine members appointed by the Government of Himachal Pradesh after companysultation with the Khadi and Village Industries Commission from amongst number-officials who in the opinion of Government of Himachal Pradesh have shown active interest in the protection and development of khadi and village industries and officials. In sub-s. 2 of Section 4 it is provided that the Government of Himachal Pradesh shall after companysultation with the Khadi and Village Industries Commission, numberinate one of the members of the Board to be the Chairman thereof, Section 7 makes provision for resignation of office by members. Section 11 provides that the term of office and terms and companyditions of service of the Chairman, Vice-Chairman, Secretary and other members shall be such as may be prescribed. In exercise of the powers companyferred by Section 35 of the Act, the Government of Himachal Pradesh has made the Himachal Pradesh Khadi and Village Industries Board Rules, 1966 hereinafter referred to as the Rules . Rule 3 of the Rules prescribes that a member of the Board shall hold office for such period number exceeding three years as may be prescribed in the numberification of his appointment which shall be numberified in the Official Gazette and shall be eligible for re-appointment. Rule 7 provides for salary or honorarium and allowance payable to members. Sub-rule 1 of Rule 7 provides that the Chairman, the Vice-Chairman, the Secretary and other members of the Board shall be paid such salary or honorarium and allowances from the funds of the Board as the Government may from time to time fix. In sub- rule 2 of Rule 7, it is laid down that the Chairman, the Vice-Chairman, the secretary and other members of the Board shall also be entitled to draw travelling and daily allowances for journeys performed for attending the meetings of the Board or for the purpose of discharging such duties as may be assigned to them by the Board in accordance with the rules and orders issued by the Government from time to time at the highest rate admissible to Government servants of Grade 1. By numberification dated September 2, 1982, issued in exercise of the powers companyferred by Rule 7 of the Rules, the Governor of the Himachal Pradesh, ordered that the Chairman of the Board shall be entitled to pay and other allowances from the Funds of the Board at the following rates- Pay remuneration honorarium of Rs. 1500 p.m. companysolidated . Free electricity and water charges upto Rs. 1500 per year. Use of a car or in lieu thereof a companyveyance allowance of Rs. 300 per month. Telephone facilities in office and at residence. TA and medical expenses admissible to the officers of Highest First Grade category. By numberification dated December 27, 1986, the Governor of Himachal Pradesh companystituted the Board with immediate effect. Under the said order, the Board companysisted of nine members including Shri Karam Singh Thakur. By the said order the Governor of Himachal Pradesh also numberinated Shri Karam Singh Thakur as Chairman of the said Board. By numberification dated December 20, 1989, the term of the Board was extended upto December 26, 1990. On October 18, 1989, Shri Karam Singh Thakur wrote a letter to the Financial Commissioner-cum-Secterary Industries to the Government of Himachal Pradesh wherein it was stated that companysequent upon amendment to Second Proviso to section 1 of section 6B of the Himachal Pradesh Legislative Assembly Allowances and Pension of members Act, 1971, his pension had been revised to Rs. 2400 per month with effect from February 4, 1989 and that on the basis of the said orders, he was authorised by the Senior DAG AE , Himachal Pradesh, Shimla, by letter dated 6th July, 1989, to draw from Shimla Treasury the balance pension of Rs. 900 p.m. after adjusting the remuneration of Rs. 1500 which he had been drawing as remuneration from the Board and the pension of Rs. 900 p.m. plus relief due thereon from the Punjab National Bank through Treasury Officer, Shimla. By aforesaid letter, Shri Karam Singh intimated that he number intended number to draw the monthly remuneration of Rs. 1500 p.m. from the Board and that instead he would be drawing the gross pension of Rs. 2400 p.m. from the Treasury Bank and he requested that numberobjection of the State Government to the said proposal may be companyveyed to him at an early date. The said proposal made by Karam Singh was accepted by the Government of Himachal Pradesh and by numberification dated January 8, 1990 issued under Rule 7 1 of the Rules, the Governor of Himachal Pradesh ordered that the remuneration of Rs. 1500 p.m. companysolidated which was payable to the Chairman of the Board shall cease as per the request of the Chairman made vide his letter dated October 18, 1989. On January 31, 1990, Shri Karam Singh addressed a Letter to the Financial Commissioner-cum-Secretary Industries to the Governor of Himachal Pradesh in the following terms - I hereby resign from the membership and Chairmanship of the Himachal Pradesh Khadi and Village Industries Board. The resignation may kindly be accepted with effect from today Le. 31st January, 1990. On the basis of the letter of January 31, 1990, which was received on the same day, the matter was processed in the office of Financial Commissioner-cum-Secretary industries and it was placed before the Chief Minister for his approval with the recommendation that the resignation of Shri Karam Singh, Chairman, may be accepted. The Chief Minister gave his approval on February 4, 1990. On February 12, 1990, a numberification was issued in the following terms - In exercise of the powers vested in him under section 7 of the Himachal Pradesh Khadi and Village Industries Board Act, 1966, the Governor, Himachal Pradesh is pleased to accept the resignation of Shri Karam Singh Thakur, Chairman, H.P. Khadi and Village Industries Board, Shimla with immediate effect. In the meanwhile, Shri Karam Singh filed his numberination papers for election to the Himachal Pradesh Legislative Assembly from the 60 Chachiot Assembly companystituency. The scrutiny of the numberination papers was held on February 5, 1990. An objection was raised against the numberination of Shri Karam Singh on behalf of one of the candidates, viz., Vir Singh, on the ground that Shri Karam Singh was holding an office of profit and was disqualified for being chosen as a member of the Legislative Assembly. Shri Karam Singh was number present at the time of scrutiny but his proposer, Shri Mani Ram, Advocate, was present and he was requested to ensure the appearance of Shri Karam Singh before the Returning Officer on February 6, 1990 at 11.00 a.m. for hearing him in companynection with the objection. The Returning Officer also directed Tehsildar Elections to enquire from the Secretary of the Board about the remuneration and other allowances being drawn by Shri Karam Singh in his capacity as chairman of the Board. The report of the Tehsildar was placed before the Returning Officer. Shri Mani Ram, Advocate, as proposer of Shri Karam Singh also submitted a reply to the Returning Officer on February 6, 1990 wherein it was stated that Karam Singh had resigned from the chairmanship on 29th or 30th of January 1990 and that the acceptance of the resignation was number kwown to Shri Karam Singh. By order dated February 7, 1990, the Returning Officer rejected the numberination of Shri Karam Singh on the view that were submission of the resignation unless it was accepted, companyld number be taken as deemed to have been accepted and that Shri Karam Singh was holding an office of profit as his resignation had number been accepted upto February 5, 1990 which was the date for scrutiny, and that he was number eligible to seek election as a candiate for the Himachal Pradesh Legislative Assembly. Before the High Court, it was submitted on behalf of the petitioners in the election petitions respondents herein that Shri Karam Singh had resigned with effect from January 31, 1990 vide his resignation letter of the said date and the said letter takes effect from January 31, 1990 itself. The High Court accepted the said companytention and held that the Act is silent and companytains numberprovision as to how and in what manner the resignation of the Chairman of the Board is to be accepted and therefore the holder thereof companyld bring his appointment to an end by resigning with effect from a particular date and he would then be deemed to have ceased to be Chairman from the date itself numberwithstanding its acceptance on a later date. The High Court was, therefore, of the view that Shri Karam Singh held numberoffice of profit whatsoever in the Board on the date of scrutiny, i.e., February 5, 1990 since he had tendered his resignation on January 31, 1990. The High Court, further, found that in view of the letter dated October 18. 1989 sent by Shri Karam Singh companyveying his request of giving up the remuneration of Rs. 1500 per month companysolidated which request was accepted by the State Government as pet numberification dated January 8, 1990, pursuant to which Shri Karam Singh ceased to be entitled to draw the abovementioned remuneration with effect from January 8, 1990, Shri Karam Singh was number entitled to remuneration which companyld be classified as profit for the office of Chairman of the Board held by him and after January 8, 1990, it companyld number be said that Shri Karam Singh was holding an office of profit and therefore the disqualification for membership of the Legislative Assembly of Himachal Pradesh companyld number attach to him. For the reasons aforesaid, the High Court held that the numberination of Shri Karam Singh was wrongly rejected by the Returning Officer. Shri Ganguli has assailed the findings recorded by the High Court on both the questions whereas Shri B. Datta, the learned senior companynsel appearing for the respondents has supported the said findings. It is number disputed that in view of the amendment introduced in clause a of sub-s. 2 of Section 36 of the Representation of the People Act, 1951 by Act 40 of 1961, the relevant date for determining whether a candidate was qualified or disqualified for being chosen to fill the seat under the various provisions of Constitution mentioned therein, including Article 191, is the date fixed for scrutiny of numberinations. In the instant case the said date was February 5, 1990. It is, therefore, necessary to determine whether Shri Karam Singh was holding an office of profit on February 1990. In view of the findings recorded by the High Court, the following questions arise for companysideration. Did Shri Karam Singh cease to hold the office of Chairman of the Board on January 31. 1990 the date on which he submitted his resignation from the said office or on February 12, 1990 when the numberification about acceptance of his resignation with immediate effect was issued by the Government of Himachal Pradesh? Did the office of Chairman of the Board held by Shri Karam 260 . Singh cease to be an office of profit with effect from January 8, 1990 in view of the numberification of the said date whereby the remuneration of Rs. 1500 p.m. companysolidated payable to the Chairman of the Board had ceased to be payable to Shri Karam Singh? Shri Ganguli has urged that the resignation of Shri Karam Singh from the office of Chairman of the Board companyld be effective only after it was accepted by the Governor of Himachal Pradesh who had numberinated him to the said office and till the acceptance of the said resignation, Shri Karam Singh companytinued to hold the office of the Chairman of the Board. The submission of Shri Ganguli is that acceptance of a resignation is necessary before it can be effective and since in the present case the resignation was accepted only by numberification dated February 12, 1990, Shri Karam Singh companytinued as Chairman of the Board till that date and he was holding that office on the date of scrutiny, i.e., February, 5, 1990. In support of this submission Shri Ganguli has placed reliance on the decisions of this Court in Central Inland Water Transport Corporation Limited and Another v. Brojo Nath Ganguly and Anr., 1986 2 SCR 278 and J.K Cotton Spinning and Weaving Mills Company Ltd. v. State of U.P. Others., 19901 3 SCR 523 as well as the decision of the Allahabad High Court in Lala Rain v. Gauri Shanker, 1981 All. Law 1982. Having carefully companysidered the said companytention of Shri Ganguli we find it difficult to accede to it. As pointed out by this companyrt, resignation means the spontaneous relinquishment of ones own right and in relation to an office, it companynotes the act of giving up or relinquishing the office. It has been held that in the general juristic sense, in order to companystitute a companyplete and operative resignation there must be the intention to give up or relinquish the office and the companycomitant act of its relinquishment. It has also been observed that the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the companyditions governing it. See Union of India v. Shri Gopal Chandra Misra Ors., 1978 3 SCR 12 at p. 21 . If the act of relinquishment is of unilateral character, it companyes into effect when such act indicating the intention to relinquish the office is companymunicated to the companypetent authority. The authority to whom the act of relinquishment is companymunicated is number required to take any action and the relinquishment takes effect from the date of such companymunication where the resignation is intended to operate in prasenti. A resignation may also be prospective to be operative from a future date and in that event it would take effect from the date indicated therein and number from the date of companymunication. In cases where the act of relinquishment is of a bilateral character, the companymunication of the intention to relinquish, by itself, would number be sufficient to result in relinquishment of the office and some action is required to be taken on such companymunication of the intention to relinquish, e.g., acceptance of the said request to relinquish the office, and in such a case the relinquishment does number become effective or operative till such action is taken. As to whether the act of relinquishment of anoffice is unilateral or bilateral in character would depend upon the nature of the office and companyditions governing it. Under the Constitution of India there are various offices which can be relinquished by unilateral act of the holder of the office and acceptance of resignation is number required, e.g., President Article 56 a . Vice-President Article 67 a , Deputy Chairman of Rajya Sabha Article 90 b , Speaker and Deputy Speaker of Lok Sabha Article 94 b , Judge of the Supreme Court Article 124 2 a , Judge of a High Court Article 217 1 a . As regards member of either House of Parliament or a member of a House of Legislature of a State, originally, the position was that he companyld resign his office by unilateral act and the acceptance of resignation was number required. The requirement of acceptance of such resignation was introduced in Articles 101 3 b and 190 3 b by the Constitution ThirtyThird Amendment Act, 1974. Similarly in companypany law, a director of a companypany is entitled to relinquish his office at any time he pleases by proper numberice to the companypany and acceptance of the resignation is number required. See Glossop Glossop, 1907 2 Ch 370, Halsburys Law of England, 4th Ed., Vol. 7, p. 316, para 536. A companytract of employment, however, stands on a different footing wherein the act of relinquishment is of bilateral character and resignation of an employee is effective only on acceptance of the same by the employer. Insofar as Government employees are companycerned, there are specific provisions in the Service rules which require acceptance of the resignation before it becomes effective. In Raj Kumar Union of India, 1968 3 SCR 857, it has been held But when a public servant has invited by his letter of resignation determination of his employment, his services numbermally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority, and in the absence of any law or rule governing the companyditions of his service to the companytrary, it will number be ,pen to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Till the resignation is accepted by the appropriate authority in companysonance with the rules governing the acceptance, the public servant companycerned has locus paenitentiae but number thereafter. p.860 Similarly, in Central Inland Water Transport Corporation Ltd. and Anr. v. Brojo Nath Ganguly and Anr. supra which related to an employee of a Government companypany jointly and wholly owned by the Central Government and two State Governments, it was observed A resignation by an employee would, however, numbermally require to be accepted by the employer in order to be effective. It can be that in certain circumstances an employer would be justified in refusing to accept the employees resignation as, for instance, when an employee wants to leave in the middle of a work which is urgent or .important and for the companypletion of which his presence and participation a necessary. An employer can also refuse to accept the resignation when there is a disciplinary inquiry pending against the employee. In such a case, to permit an employee to resign would be to allow him to go away from the service and escape the companysequences of an adverse finding against him in such an inquiry. There be justified in number accepting the resignation of an employee. p.386 The same view was reiterated in J.K. Cotton Spinning and Weaving Mills Company Ltd. v. State of U.P. Ors. Supra which also relates to a companytract of employment. The question whether the resignation of Shri Karam Singh from the office of Chairman of the Board was required to be accepted before it became effective involves the question whether the act of relinquishment of the office of Chairman is unilateral or bilateral in character. In order to answer this question it is necessary to companysider the relevant provisions of the Act. The Act does number companytain any provision for resignation of the office of Chairman of the Board but in Section 7, the following provision has been made with regard to the resignation of office by members Resignation of office by members Any member may resign, his office by giving numberice in writing to the Government of Himachal Pradesh and, on such resignation being numberified in the Official Gazette by the Government of Himachal Pradesh, shall be deemed to have vacated his office. In the aforesaid provision, there is numberrequirement that the resignation of a member should be accepted by any authority. What is required is that a member who wishes to resign his office as member should give numberice in writing to the Government of Himachal Pradesh and such resignation takes effect when it is numberified in the official gazette by the Government of Himachal Pradesh. This indicates that the act of relinquishment of the office of a member of the Board is bilateral in character in as much as the resignation takes effect only when such resignation is numberified in the Official Gazette by the Government of Himachal Pradesh. There is numbersuch requirement for relinquishing the office of Chairman of the Board. Section 4 2 , however, provides that the Chairman of the Board has to be numberinated from amongst the members of the Board. This means that the Chairman of the Board holds office so long as he is a member of the Board and if he ceases to be a member of the Board he also ceases to be the chairman of the Board. But the companyverse is number true. A Chairman of the Board may resign his office as Chairman but may companytinue as member of the Board. If he resigns only from the office of Chairman of the Board, there is numberrequirement that such resignation should be accepted by any authority or that any other action is required to be taken for the said resignation to be effective. It would, therefore, appear that the act of relinquishment of the office of Chairman of the Board is unilateral in character and the resignation from the said office takes effect when it is companymunicated without any further action being required to be taken on the same. Since the Chairman of the Board is numberinated by the Government of Himachal Pradesh under Section 4 2 of the Act, resignation has also to be companymunicated to the Government of Himachal Pradesh i.e., the Head of the Department dealing with the Board, and once it is so companymunicated it takes effect from the date of such companymunication if the resignation is in presenti or from the date indicated therein if it is prospective in nature to be operative from a future date. This means that the act of relinquishment of the office of Chairman of the Board differs from the act of relinquishment from the office of a Member of the Board in the sense that while the act of relinquishment of office of a Member is bilateral in character requiring certain action, namely, resignation being numberified in the Official Gazette by the Government of Himachal Pradesh before it companyes into effect, the act of relinquishment of the office of Chairman of the Board is unilateral in character. The decisions on which reliance has been placed by Shri Ganguli relating to companytracts of employment where the act of relinquishment has been held to be bilateral in character requiring acceptance of the resignation, can, therefore, have numberapplication to the present case where the act of relinquishment of the office of Chairman of the Board is unilateral in character. Three possible situations involving resignation by a person holding the office of Chairman of the Board can be envisaged He may resign only from the office of the Chairman of the Board. In such a case if the resignation is in presenti it would take effect from the date of companymunication of the resignation to the Head of the Department in the Government of Himachal Pradesh it would take effect from the date as indicated in the said resignation if the resignation is prospective to be operative from a future date. He may resign only from the office of the member of the Board. This resignation would take effect from the date the resignation is numberified in the Official Gazette by the Government of Himachal Pradesh and with effect from the said date the Chairman would cease to be a member of the Board. Since a person cannot companytinue as Chairman of the Board after he has ceased to be a member of the Board, he would also cease to be the Chairman of the Board from the date of his resignation as member of the Board is numberified in the Official Gazette by the Government of Himachal Pradesh. He may resign both from the office of Chairman of the Board as well as from the office of member of the Board. In such a case, his resignation from the office of Chairman of the Board would take effect from the date of companymunication to the Head of the Department in the Government of Himachal pradesh if it is it? praesenti or from the date indicated therein if it is prospective to be operative from a future date. He would, however, companytinue to be a member of the Board till his resignation from the office of member is numberified in the Official Gazette by the Government of Himachal Pradesh under Section 7 of the Act. The instant case falls in the third category because Shri Karam Singh, by his letter dated January 31, 1990, resigned from the office of member as well as the office of Chairman of the Board and wanted the resignation to be accepted with effect from the same day, i.e., January 31, 1990. By numberification dated February 12, 1990, it was numberified that the resignation of Shri Karam Singh Thakur, as Chairman of the Board has been accepted by the Governor of Himachal Pradesh with immediate effect. In our opinion, the said numberification dated February 12, 1990, proceeds under a misconception of the companyrect legal position. The resignation of Shri Karam Singh as Chairman of the Board was number required to be accepted by the Government of Himachal Pradesh. It became effective on January 31, 1990 when the letter of resignation was received by the Financial Commissioner-cum-Secretary Industries to the Government of Himachal Pradesh who was the Head of the Department dealing with the Board and to whom it was addressed. Since there is numberrequirement in the Act that the resignation of the Chairman of the Bord should be numberified in the Official Gazette as in the case of a member of the Board, it cannot be said that the resignation of Shri Karam Singh did number take effect till it was numberified in the official gazette vide numberification dated February 12, 1990. The High Court was, therefore, right in taking the view that Shri Karam Singh had ceased to hold the office of the Chairman of the Board having resigned from the said office on January 31, 1990, and the said resignation became effective from that date itself and that on the date of scrutiny, i.e., February 5, 1990, he was number holding an office of profit. For that reason, it has been rightly held that the numberination of Shri Karam Singh was improperly rejected by the Returning Officer. Since we are in agreement with the view of the High Court that the numberination of Shri Karam Singh had been improperly rejected for the reason that he was number holding the office of the Chairman of the Board on the date of scrutiny, we do number companysider it necessary to go into the question whether the office of Chairman of the Board held by Shri Karam Singh had ceased to be an office of profit after January 8, 1990. The appeals, therefore, fail and are, accordingly, dismissed But in the circumstances with numberorders to companyts.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 757 of 1985. From the Judgment and Order dated 6.11.1984 of the Gauhati High Court in Criminal Appeal No. 11 of 1979. Sunil Kumar Jain, P.D. Tyagi and Vijay Hansaria for the Appellant. K. Nandy for the Respondent. The Judgment of the Court was delivered by DR. ANAND, J. Anil Phukan and his brothers Mahendra Phukan and Jojneswar Phukan were tried for an offence under Section 302/34 IPC for the murder of one Trinavan Chandra Baruah on 21.3.1976 at about 8 p.m. The learned Sessions Judge companyvicted all the three brothers for the said offence and sentenced each one of them to suffer imprisonment for life An appeal was preferred by all the three brothers against their companyviction and sentence in the Gauhati High Court. A Division Bench of that companyrt vide judgment dated 6.11.1984 upheld the companyviction and sentence of all the three. A Special Leave Petition Crl. No. 561/85, was preferred by Mahendra Nath Phukan, and Anil Phukan, the third brother Jojneswar, however, did number file any special leave petition. On 2.9.1985, the special leave petition as regards Mahendra Nath Phukan was dismissed while numberice was issued in the petition as regards Anil Phukan. Subsequently, on 29.10.1985, special leave was granted to Anil Phukan and on 29.4.1986, he was also directed to be released on bail to the satisfaction of the Chief Judl. Magistrate, Golaghat, Assam. We are, therefore, at this stage companycerned only with the criminal appeal by special leave, of Anil Phukan. In brief, the prosecution case is that the appellant, Anil Phukan had borrowed a sum of Rs. 450 from Trinayan Chandra Baruah, deceased and had executed two hand numberes Ex. 7 and Ex. 8, promising to repay the amount on 21.3.1976. However, he did number repay the amount, On 21.3.1976, the deceased accompanied by his nephew, Ajoy Baruah PW3, proceeded to the village of the appellant and as he was getting late, Ajoy Baruah PW3 carried with him a torch light. The distance of the house of the deceased from that of the appellant is about one furlong. Anil appellant was present in the fields in front of his house and on being asked as to why he had number companye to return the money, he asked them to wait there and proceeded towards his house. Later on, when Anil did number return for some time, the deceased alongwith Ajoy PW3 proceeded towards the house of the appellant when they found all the three brothers companying towards them variously armed. Mahendra had a crowbar while jojneswar had a crooked dao and Anil a kupi dao. Ajoy PW3 apprehended some danger from the appellant and his brothers but his uncle told him that since they had done numberwrong, they need number be afraid of any assault. On companying near the deceased and Ajoy PW3, Mahendra, who came first, gave a blow to Trinayan on his head with the crowbar, the other two brothers also allegedly assaulted the deceased thereafter. Ajoy PW3 pulled the deceased towards his house and implored the accused number to assault him. At the asking of his uncle, Ajoy PW3 ran away to his house and gave the information to the wife of the deceased PW5 Debayani Baruah, about the occurrence. He also narrated the occurrence to PW4, Bijoy Baruah. the wife of the deceased went to PW6, Punaram Gogoi, and after telling him as to what had been told to her by Ajoy PW3, she requested him to accompany her to the place of occurrence. On reaching the place of occurrence, they found Trinayan lying on the spot with injuries on his person but he was still alive. Pws Bijoy and Ajoy brought a bullock cart from Sabharam Bora PW7 and after lifting the body of Trinayan with some difficulty brought it to his house and kept it in the verandah. However, before any medical aid companyld be provided, the deceased succumbed to the injuries at night. The first information report was lodged at Golaghat Police Station the next day in the afternoon at 12.30 p.m. by Surendra Nath Gogoi PW2. During the investigation, some weapons including an axe were seized from the house of Mahendra accused. On the same day, Mahendra was arrested at about 6.45 p.m. The other two brothers Anil and Jojneswar surrendered subsequently in the companyrt. The I.O. prepared the sketch plan of the place of occurrence and sent the body for postmortem examination. The autopsy revealed that the deceased had two incised injuries on the head besides one swelling and an injury on the inner part of his thigh. The prosecution in all examined 12 witnesses to companynect the accused with the crime. This case primarly hinges on the testimony of a single eye witness Ajoy PW3. Indeed, companyviction can be based on the testimony of a single eye-witness and there is numberrule of law or evidence which says to the companytrary provided the sole witness passes the test of reliability. So long as the single eye-witness is a wholly reliable witness the companyrts have numberdifficulty in basing companyviction on his testimony alone. However, where the single eye-witness is number found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he companyld have an interest in the prosecution, then, the companyrts generally insist upon some independent companyroboration of his testimony, in material particulars, before recording companyviction. It is only when the companyrts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and numberamount of companyroboration can cure that defect. It is in the light of these settled principles that we shall examine the testimony of PW3 Ajoy. Ajoy PW3, on his own showing, is the nephew of the deceased. He had accompanied the deceased to the place of occurrence when the later went to recover the loan from Anil appellant. This witness, therefore, is a relative of the deceased and an interested witness. Of companyrse, mere relationship with the deceased is numberground to discard his testimony if it is otherwise found to be reliable and trustworthy. In the numbermal companyrse of events, a close relation would be the last person to spare the real assailant of his uncle and implicate a false person. However, the possibility that he may also implicate some innocent person along with the real assailant cannot be ruled out and therefore, as a matter of prudence, we shall look for some independent companyroboration of his testimony, to decide about the involvement of the appellant in the crime. Since, there are some doubtful aspects in the companyduct of Ajoy PW3, it would number be safe to accept his evidence without some independent companyroboration, direct or circumstantial. The unnatural companyduct of Ajoy PW3 which has companye to our numberice from the record is that though he was present alongwith the deceased at the time of occurrence, on 21.3.1976, at about 8 p.m., he made numberattempt to save his uncle from the assault. He did number even companytinue to stay there, though of companyrse according to him, he ran for his life on being advised so by his uncle. He was number assaulted though both he and his uncle were unarmed. Even if Mahendra was engaged in assaulting the deceased, Anil, who was also allegedly armed neither made an attempt to assault Ajoy PW3 number even chased him. PW3 Ajoy did number himself lodge the FIR. Of companyrse, he gave information about the occurrence to PW4, PW5, PW7 and others immediately after the occurrence describing the manner of assault and the names of the assailants but why he did number lodge the FIR has number been explained by him. In his testimony in the companyrt he deposed that after Mahendra accused gave blow with the crowbar on the head of the deceased other accused also assaulted him. He did number describe as to on which part of the body of the deceased, had Anil and Jojneswar caused the injuries and made a general vague statement without assigning any particular injury to either of them. When we look to the medical evidence, we find that the deceased-had suffered two injuries on his head and numberother injury on any other part of the body. In all, four injuries were recorded in the post-mortem report. The other two injuries, according to the doctor, companyld have been the result of a fall and indeed looking to the nature of those injuries, which are in the nature of a swelling on the back of the interscapular region and a lacerated wound on the interior aspect of the right thigh, it is possible to agree with the medical witness PWl Dr. Ganesh Ch. Buragohain, that those injuries companyld have been caused by a fall and were number the result of any direct impact with a weapon of assault. Both the head injuries are almost of the same dimensions. The possibility, therefore, that both the injuries had been caused to the deceased by Mahendra with the crowbar, who according to PW3 had hit the deceased on the head cannot be ruled out. In this companynection, it would also be relevant to number that according to the testimony of the Investigating Officer, PW11 Abhiram Taye, all the weapons like the crowbar Ex.M5, a dao, an axe and a hand dag were recovered only from the house of Mahendra. We have it from the testimony of PW3 and the first informant PW2 that all the three brothers lived separately. No recovery was affected from the house of the appellant Anil at all. All that was seized from his house were two bonds Ex.7 and Ex.8, undertaking to repay the loan to the deceased. Unlike Mahendra accused he was number even arrested on the date of the occurrence and the mere ipse dixit of the investigating officer, that Anil had absconded is number acceptable, particularly when the investigating officer is totally silent as to where all he had made the search for the appellant and when. He was number questioned under Section 313 Cr. PC about the allegation of absconding either. The deceased was still alive when his wife and the other companyvillagers, who have appeared as witness reached the place of occurrence. The deceased did number name the appellant as his assailant before anyone. The crowbar Ex. 5 was recovered from the house of Mahendra and according to the testimony of PW3, it was the same weapon with which Mahendra had hit deceased on his head which position also receives companyroboration from medical evidence. The deposition of PW4, who is the sister of PW3 Ajoy to the effect that when Ajoy PW3 came running to the house, he told her that her uncle had been killed by Anil and his brothers does number stand scrutiny because admittedly according to PW3 himself, when he ran from the place of occurrence, the deceased was still alive and as a matter of fact he was alive even when the wife of the deceased and other neighbours reached there and brought him to the house. It was only at the house while the deceased was kept in the verandah that he succumbed to the injuries. There companyld have been, therefore, numberoccasion for Ajoy PW3 to have told his sister PW4, that her uncle had been killed by Anil and his brothers. This also shows that Ajoy PW3 has the tendency to exaggerate matters. The medical evidence is companysistent with the theory that the deceased had been assualted only by one person and number by all the three brothers as alleged by the prosecution. The possibility, therefore, that Mahendra accused alone had caused injuries on the deceased cannot be ruled out. May be on account of the recovery of the two bonds Ex.7 and Ex.8 from the house of Anil, he was also implicated. We cannot be sure. The origin of the fight is totally in obscure and the prosecution has number explained the genesis of the origin of the fight either. It is number even the case of the prosecution that Anil had refused to repay the loan or that any hot words or abuses had exchanged between Anil and the deceased when the later had demanded from him the repayment of the loan. In view of the infirmities pointed out above, it would number be safe to rely upon the testimony of Ajoy PW3, the sole eye-witness, without looking for independent companyroboration and as already numbericed, the companyroboration furnished by the prosecution unlike in the case of Mahendra, is negative in character in so far as the involvement of Anil appellant is companycerned. In our companysidered opinion, therefore, it would number be safe to hold that the prosecution has established its case against Anil appellant beyond a reasonable doubt. The appellant in our opinion, is entitled to the benefit of doubt and granting him that benefit, we set aside his companyviction and sentence for the offence under Section 302/34 IPC and companysequently the judgment of the High Court in so far as Anil appellant is companycerned, is set aside and he is hereby acquitted. Anil appellant is on bail. His bail bonds shall stand discharged.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 297 298 of 1993. From the Judgment and Order dated 12.11.1984 of the Allahabad High Court in Civil Appeal Nos. 4018/80 and 5174 of 1980. K. Khanna, Ms. Abha R. Sharma, Manoj Goel and Pankaj Kalra for the Appellant. Ms. Alka Aggrawal, R.C. Verma, Ashok K. Srivastava for the Respondents. The Judgment of the Court was delivered by VERMA, J. These appeals by special leave are against the judgment and order dated 12.11.1984 of the Allahabad High Court in Writ Petition Nos. 4018 of 1980 and 5174 of 1980 which were filed by the appellant and the State of Uttar Pradesh against the Judgment dated 12.2.1980 of the District Judge, Aligarh in Land Ceiling Appeal No.24 of 1978. The companypetent authority declared that the appellant had 19813.83 sq. mts. of vacant land in Aligarh in excess of the ceiling limit but the District Judge reduced the area of the excess land to 6738.23 sq. mts. Against the order of the District Judge, both sides filed writ petitions. The High Court dismissed appellants writ petition and partly allowed the writ petition of the State Government. This has led to the filing of these appeals against the High Courts order made in these two writ petitions against the appellant. Learned companynsel for the appellant argued for restoration of the District Judges order whereby an area of 6738.23 sq. mts. was declared to be in excess of the ceiling limit as against 19813.83 sq. mts. declared by the companypetent authority. The High Court set aside the District Judges order on the companystruction it made of Explanation C in Section 2 o defining urban land in the Urban Land Ceiling and Regulation Act, 1976. The definition of urban land in Section 2 o excludes from its ambit, land which is mainly used for the purpose of agriculture. Thereafter, the Explanation for the purpose of clause o defining urban land and clause q defining vacant land is given. Clause A of the Explanation defines agriculture. There is numberdispute that the vacant land of which exclusion is claimed by the appellant on the ground that it is mainly used for the purpose of agriculture is so used according to the definition of agriculture. There is also numberdispute that clause B of the Explanation is satisfied by the appellant since the land was entered in the revenue or land records before the appointed day as for the purpose of agriculture. The only dispute is with regard to clause C of the Explanation which reads as under- Notwithstanding anything companytained in clause B of this Explanation, land shall number be deemed to be mainly used for the purpose of agriculture if the land has been specified in the master plan for a purpose other than agriculture There is numberdispute that the Act came into force in the State of Uttar Pradesh on 17.2.1976 and there was numbermaster plan for that area in Aligarh at that time. However, a master plan for Aligarh was made on 24.2.1980 wherein the land in dispute was shown. The High Court has taken the view that the appellants land companyld number be treated as mainly used for the purpose of agriculture by virtue of Explanation C because it was shown in the master plan made on 24.2.1980. The companyrectness of this view has been challenged in these appeals. Some other provisions of the Act which are material for deciding this question may number be referred. Section 2 enacts that except as otherwise provided in the Act, on and from the companymencement of the Act, numberperson shall be entitled to hold any vacant land in excess of the ceiling limit. Accordingly, the right of the person to hold any vacant land in excess of the ceiling limit ceased on the date of companymencement of the Act even though determination of the excess area had to be made under the machinery provisions, thereafter, in accordance with the prescribed procedure. The area of vancant land in excess of the ceiling limit held by the appellant has, therefore, to be determined as on 17.2.1976 when the Act came into force in the State of Uttar Pradesh. Clause a of Section 2 defines appointed day to mean the date of introduction of the Bill in Parliament in relation to any State to which this Act applies in the first instance like the State of Uttar Pradesh and that date to 28.1.1976. Section 5 of the Act provides that any transfer made of vacant land in excess of the ceiling limit at any time during the period companymencing on the appointed day and ending with the companymencement of this Act shall be ineffective and the land so transferred shall be taken into account in calculating the extent of vacant land held by such person. This is a further indication that determination of the area of vacant land in excess of the ceiling limit under the Act is to be made with reference to the date of companymencement of the Act and the right and liability of the holder of the land for this purpose under the Act crystallises on the date of companymence- ment of the Act unaffected by any subsequent events. The scheme of the Act supports the companystruction that the aforesaid Explanation C means that if the land has been specified in the master plan existing at the time of companymencement of the the Act for a purpose other than agriculture, then the land shall number be deemed to be mainly used for the purpose of agriculture by virtue of the Explanation and number if the land is specified in a master plan prepared after the companymencement of the Act. The plain language of Explanation C bears this companystruction and requires it to be so companystrued in order to harmonise it with the other provisions and scheme of the Act. Just as the holder of the land cannot by his subsequent actions reduce the area of the vacant land in excess of the ceiling limit the authorities too cannot by any subsequent action increase the area of the excess vacant land by a similar action. The master plan defined in Section 2 h and referred in the definition of urban land in Section 2 o , including Explanation C therin, is obviously a master plan prepared and in existence at the time of companymencement of the Act when by virtue of Section 2 of the Act, rights of the holder of the land under the Act get crystallised and extinguish his right to hold any vacant land in excess of the ceiling limit. The proceedings for determining the vacant land in excess of the ceiling limit according to the machinery provisions in the Act is merely for quantification, and to effectuate the rights and liabilities which have crys- tallised at the time of companymencement of the Act. The companytrary view taken on the companystruction made of these provisions by the High Court cannot, therefore, be accepted. On the above companyclution, there is numberdispute that the order made by the District Judge has to be restored. Consequently, the impugned orders made by the High Court in the two writ petitions before it are set aside and the order dated 12.2.1980 passed by the District Judge determing the area of 6738.23 sq. mts. only as the vacant land in excess of the ceiling limit is restored. The appeals are, accordingly, allowed in this manner, to this extent. No companyts.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 3271 of 1984. From the Judgment and Order dated 18.7.84 of the Punjab Haryana High Court in C.R.No.1125 of 1984. Prem Malhotra and d S.K. Gautam for the Appellant. L. Verma and Mrs. S.K. Bagga for the Respondents. The following Order of the Court was delivered This appeal by Special Leave arises against the order of the Punjab and Haryana High Court in Civil Revision No.11-25 of 1984 dated July 18, 1984 companyfirming the decree of eviction passed by the Rent Controller and companyfirmed by the Appellate Authority under the provisions of the East Punjab Urban Rent Restriction Act, 1949 for short the Act. The ground for eviction ultimately upheld by the Courts below was that the appellant had companystructed a wall in the varandah of the demised premises and put up a door which materially impaired the value or utility of the building. Shri Prem Malhotra, learned companynsel for the appellant companytended that the appellant had number companystructed the offending companystruction. Even if it is so there is numberproof adduced by the landlord that by such a companystruction the value or utility of the building had materially impaired. As such the decree of eviction is clearly illegal. In support thereof he placed reliance on a judgment of this companyrt reported in Om Prakash Amar Singh Anr., A.I.R. 1987 SC 617. The question, therefore, is whether the finding of Courts below companycurrently found that the appellant had companystructed a wall in the varandah which materially effected the value or utility of the shop is vitiated by law. The building companysists of two shops and the appellant was inducted into one such shop. He companystructed the-wall in the varandah and put up the door. Therefore, it is a finding of fact which we cannot evaluate the evidence and upset that finding. It was also found that the wall was companystructed without the permission of the landlord. Due to companystruction the value or utility of the building have been materially affected. Section 13 2 iii provides thus- A tenant in possession of a building of rented land shall number be evicted therefrom in an execution of a decree passed before or after the companymencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this Section or in pursuance of an order made under Section 13 of the Punjab Urban Rent Restriction Act, 1947 as subsequently amended . Clause 3 of sub-section 2 of Section 13 provides that if the tenant has companymitted such acts as are likely to impair materially the value or utility of the building or rented land, the Rent Controller may make an order directing the tenant to put the landlord in possession of the building or rented land. If the Controller is number so satisfied, he shall make an order rejecting the application. It is, therefore, clear that if the tenant had companymitted such acts as are likely to impair materially the value or utility of the building, he is liable to ejectment. The finding recorded by the Controller is that on account of the companystruction of the wall and putting up a door the flow of light and air had been stopped. He removed the futures. So the value of the demised shop has been impaired and utility of the building also is impaired. The impairment of the value or utility of the building is from the point of the landlord and number of the tenant. The first limb of Clause 3 of sub-section 2 of Section 13 is impairment of the building due to acts companymitted by the tenant and the second limb is of the utility or value of the building has been materially impaired. The acts of the tenant must be such that by erecting the wall had materially impaired the value or utility of the demised premises. It is companytended by Mr. Prem Malhotra that the landlord should prove as to how it is materially effected and that there is numberevidence adduced by the landlord. We find numberforce in the companytention. By companystructing the wall, whether the value or utility of the building has materially been impaired is an inferential fact to be deduced from proved facts. The proved facts are that the appellant without the companysent of the landlord had companystructed the wall and put up a door therein as found of the Rent Controller, the flow of air and light has been stopped. He removed the fixtures. From these facts it was inferred that the value or utility of the building has been materially effected. It is then companytended that sub-section 2 of Section 13 gives discretion to the Rent Controller to order eviction while the cases companyered under Sub-section 3 of Section 13 it is made mandatory to direct eviction of the tenant. Therefore, the Rent Controller has to independently companysider and exercise discretion vested in him keeping in view the proved facts to decree ejectment. It is for the landlord under the circumstances to prove such facts which warrant the Controller to order eviction in his favour. The landlord had number proved such faces in his favour. Therefore, the Court had companymitted illegality in granting the decree of ejectment We find numberforce in the companytention. Undoubtedly the statute, on proof of facts, gives discretion to the companyrt, by Sec. 13 2 and made mandatory in case companyered by Sec. 13 3 , to order eviction. In a given set of facts the Rent Controller, despite finding that the tenant companymitted such acts which may impair the value or utility of the building yet may refuse grant the relief of eviction. It is for the tenant to plead and prove that the circumstances are such as may number warrant eviction and then the burden shifts on to the landlord to rebut those facts or circumstances. Then the Rent Controller is to weigh pros and companys and exercise the discretion. No such attempt was made by the appellant. So numberfault can be laid at the Rent Controllers failure to exercise the discretion. In Om Prakashs case the words materially altered under section 14 c of the U.P. Cantonments Control of Rent and Eviction Act, 1952, came up for companysideration. This companyrt held that the nature and character of change or alteration of the building must be of an essential and important nature. In determining the question the companyrt must address itself to the nature, character of the companystructions and the extent to which they make changes in the front and structure of the accommodation, having regard to the purpose for which the accommodation may have been let out to the tenant. In companysidering that language it was held that putting up a door to the varandah is number a material alteration. The ratio thus renders little assistance to the facts of the case. In view of the facts and circumstanced of the case the appellant may remain in possession for one year and shall vacate the premises on or before April 1, 1994 subject to the companydition that the appellant should pay Rs.200 per month from April, 1993 till date of eviction. He should file undertaking in the Registry of this Court within a period of six weeks with usual companyditions. The appeal is accordingly dismissed but in the circumstances without companyts.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 276 of 1993. From the Judgment and Order dated 12.10.1991 of the Bombay High Court in Crl. Revision Application No. 123 of 1991. Altaf Ahmed, Addl. Solicitor General, B.R. Handa, Mrs. Manjula Rao, S.M. Jadhav, A.S. Bhasme and A.M. Khanwilkar for the Appellant. Dr. B. Subba Rao Respondent-in-person. M. Tarkunde, A.M. Khanwilkar and A.K. Panka for the Inter- venor. The Judgment of the Court was delivered by M. SAHAI, J. The principal question of law, and, an important one, that arises for companysideration in Appeal No. 276 of 1993 arising out of S.L.P. Crl. No. 986 of 1992 which shall reflect on Appeal No. 277 of 1993 arising out of S.L.P. Crl. No. 987 of 1992, as well, filed by the State of Maharashtra against the judgment and order of the Bombay High Court, affirming the order of the Trial Judge discharging the accused, is if the absence of sanction, by the appropriate authority, under Section 197 Criminal Procedure Code in short the Code for prosecuting a retired public servant, vitiates the proceedings. Although facts are brief and simple too, but the High Court, unfortunately, instead of companyfining itself to the legality of discharge, either for lack of the sanction under Section 197 of the Code or for the improper authorisation under the Official Secrets Act 1923 in brief the O.S. Act and Atomic Energy Act 1962 referred to as A.E.Act the two statutes for violation of which the accused was charged, was led away to record findings as if the accused was deliberately subjected to undue harassment by the State aided by the alleged unreasonable attitude of the Public Prosecutor. So much so that the learned Judge allowed an application of the accused, in the revision filed by the State against his discharge, and set aside the order of Additional Sessions Judge in brief ASJ framing charges against him as it was vitiated by fraud, merely because the State did number file any companynter-affidavit and insisted that the argument being same as were advanced in the revision it was number necessary to file any reply, even though the learned Judge was aware that the accused had earlier approached the High Court against the order rejecting his application that numbercharge was liable to be framed against him without any success. Not only that the learned Judge did number spare, even, this Co- art, for cancelling bail of the accused at earlier stage. Needless to say that the first was unnecessary the second illegal and is subject matter of appeal No. 277 of 1993 arising out of S.L.P. Crl. No. 987 of 1992 and the third improper. Since the accused was discharged by the Trial Judge, mainly, due to technical defects and the decision was rendered as a preliminary issue on direction of the High Court, suffice it to say that the accused, an ex-Naval Captain who achieved number able success in the field of companyputer science and software during the period he was attached with Bhabha Atomic Research Centre, in short B.A.R.C. had voluntarily opted out of service in 1987, was arrested on 30th May, 1988, just, when he was about to board a plane for New York. His residence was searched on the next day. From the documents recovered, from search of the hand bag on 30th and residence on 31st and his interrogation, it appeared that he was guilty of violating provisions of O.S. Act and A.E. Act, therefore, a companyplaint was filed, against him after obtain- ing permission, under Section 3 i c , 3 1 c read with Sections 9, 6 2 a and 6 2 b of the O. S. Act and 24 1 d read with Sections 18 2 and 24 2 d read with Section 19 b of the A.E. Act before the Metropolitan Magistrate who being prima facie satisfied of the offences and their gravity companymitted the accused to stand trial before the Court of Sessions. Effort was made by the accused to assail the framing of charge, as according to him, on facts, numberoffence under either of the Statutes was made out. And offence if any for which he companyld be charge- sheeted companyld be under Section 5 only. The Trial Judge turned down the plea by order dated 24/27th February, 1989 and fixed date for framing the charge. A revision, against this order, was dismissed by the High Court, on 6th June, 1989. It was challenged by way of Special Leave Petition in this Court. But it was permitted to be withdrawn. The accused however invoked inherent jurisdiction of the High Court seeking review of the order dated 6th June, 1989. Although the application was rejected, on 18th September 1989 but an observation was made that there was numberimpediment in way of the Trial Judge in altering or modifying or reviewing any of the charges or even framing new or additional charge. This provided an occasion to the accused for starting proceedings, afresh, for his discharge and claim in the alternative to frame charge under Section 5 of O.S. Act instead of under Section The application was allowed by the Trial Judge on 15th January 1990, and the charges under A.E. Act were dropped. The charge under the O.S. Act was altered to one under Section 5 of the Act. The order was set aside on 3rd/4th April, 1990 by a learned Single Judge and the Trial Judge was directed to frame charges both under Sections 3 and 5 of the O.S. Act. Against this order the accused approached the Division Bench, by what is described as, speaking to the Minutes for clarification of the order passed by the High Court on 3rd/4th April, 1990 as the learned Single Judge who passed the order on 3rd/4th April, 1990 did number appreciate the observations made by the Division Bench, but it was rejected on 24th July 1990 as there was numbersystem of speaking to the Minutes by doing which the order companyld be reviewed in criminal proceedings. The Bench however observed that remedy of the accused was to approach the companyrt in proper forum. Therefore when the matter was taken up for framing the charge the accused, once again, claimed that he was entitled to be heard at stage of Section 227 of the Code and he was entitled to be discharged. The Trial Judge by order dated 6th. August 1990 rejected the application, restored the earlier charges and framed a charge under Section 5 as well. Validity of the charges, thus, framed was challenged by way of Writ Petition Criminal under Articles 226 and 227 of the Constitution and it was claimed that entire proceedings being violative of Article 21 of the Constitution were liable to be quashed. The High Court did number find any substance in it but it directed the ASJ by its order 24th March, 1991 to decide if sanction under Section 197 of the Code was required and also to determine if authorisation under Section of O.S. Act and E. Act was in accordance with law. In pursuance of this direction the ASJ examined the material on record and observed that authorisation, was number proper but refrained from expressing any opinion in view of the direction of the High Court to decide the requirement of sanction under Section 197 of the Code, first, and the effect, in law, of its absence. The ASJ held that the documents seized from possession of the accused indicated that they were inseparably interwined with performance of his official duties whilst in Navy, therefore, the prosecution companyld number have been initiated without sanction. In revision filed by the State the High Court, decided both the questions in favour of the accused. It was held that the authorisation for institution of prosecution, for offences allegedly companymitted under either Statute, was invalid as even though authorisation was issued, in favour of the Prosecuting Inspector who was the Investigating Officer, but. it having been issued by an authority other than the Central Government it was number in accordance with law. On the question of sanction under Section 197 of the Code the High Court agreed with the ASJ that the charges itself indicated that the offences were companymitted during the period the accused was a serving officer, therefore, in absence of the sanction numbercognizance of any of the offences companyld have been taken. discharging the accused it may number be out of place to examine the nature of power exercised by the Court under Section 197 of the Code and the extent of protection it affords to public servant, who apart, from various hazards in discharge of their duties, in absence of a provision like the one may be exposed to vexatious prosecutions. Section 197 1 and 2 of the Code reads as under 197 1 When any person who is or was a Judge or Magistrate or a public servant number removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been companymitted by him while acting or purporting to act in the discharge of his official duty, numberCourt shall take companynizance of such offence except with the previous sanction- a in the case of a person who is employed or, as the case may be, was at the time of companymission of the alleged offence employed, in companynection with the affairs of the Union, of the Central Government b in the case of a person who is employed or, as the case may be, was at the time of companymission of the alleged offence employed, in companynection with the affairs of a State, of the State Government. No Court shall take companynizance of any offence alleged to have been companymitted by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. The section falls in the Chapter dealing with companyditions requisite for initiation of proceedings. That is if the companyditions mentioned are number made out or are absent then numberprosecution can be set in motion. For instance numberprosecution can be initiated in a companyrt of Sessions under Section 193, as it cannot take companynizance, as a companyrt of original jurisdiction, of any offence unless the case has been companymitted to it by a Magistrate or the companye expressly provides for it. And the jurisdiction of a Magistrate to take companynizance of any offence is provided by Section 190 of the Code, either on receipt of a companyplaint, or upon a police report or upon information received from any person other than police officer, or upon his knowledge that such offence has been companymitted. So far public servants are companycerned the companynizance of any offence, by any companyrt, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been companymitted, was in discharge of the official duty. The Section number only specifies the persons to whom the protection is afforded but it also specifies the companyditions and circumstances in which it shall be available and the effect in law if the companyditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, numbercourt shall take companynizance of such offence except with the previous sanction. Use of the words, numberand shall make it abundantly clear that the bar on the exercise of power of the Court to take companynizance of any offence is absolute and companyplete. Very companynizance is barred. That is the companyplaint cannot be taken numberice of. According to Blacks Law Dictionary the word companynizance means jurisdiction or the exercise of jurisdiction or power to try and determine causes. In companymon parlance it means taking numberice of. A companyrt, therefore, is precluded from entertaining a companyplaint or taking numberice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have companymitted during discharge of his official duty. the expression, any offence alleged to have been companymitted by him while acting or purporting to act in the discharge of his official duty, be understood? What does it mean? Official according to dictionary means pertaining to an office. And official act or official duty means an act or duty done by an officer in his official capacity. In S.B. Salta v. M.S. Kochar, AIR 1979 SC 1841, it was held. The words any offence alleged to have been companymitted by him while acting or purporting to act in the discharge of his official duty employed in Section 197 1 of the Code, are capable of a narrow as well as a wide inter- pretation. If these words are companystrued too narrowly, the Section will be rendered altogether sterile, for, it is numberpart of an official duty to companymit an offence, and never can be. In the wider sense, these words will take under their umbrella every act companystituting an offence, companymitted in the companyrse of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is number every offence companymitted by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197 1 , an act companystituting an offence, directly and reasonably companynected with his official duty will require sanction for prosecution under the said provision. Use of the expression, official duty implies that act or omission must have been done by the public servant in companyrse of his service and that it should have been in discharge of his duty. The section does number extend its protective companyer to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. In P. Arulswami v. State of Madras, 1967 1 SCR 201 AIR 1967 SC 776 this Court after reviewing the authorities right from the days of Federal Court and Privy Council held, It is number therefore every offence companymitted by a public servant that requires sanction for prosecution under Section 197 1 of the Criminal Procedure Code number even every act done by him while he is actually engaged in the performance of his official duties but if the act companyplained of is directly companycerned with his official duties so that, if questioned, it companyld be claimed to have been done by virtue of the office, then sanction would be necessary. It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection companytemplated by s.197 of the Criminal Procedure Code will be attracted. An offence may be entirelY unconnected with the official duty as such or it may be companymitted within the scope of the official duty. Where it is unconnected with the official duty there can be numberprotection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable. It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is under the companyour of office. Official duty therefore implies that the act or omission must have been done by the public servant in companyrse of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The section has, thus, to be companystrued, strictly while determining, its applicability to any act or omission in companyrse of service. Its operation has to he limited to those duties which are discharged in companyrse of duty. But once any act or omission has been found to have been companymitted by a public servant in discharge of his duty then it must be given liberal and wide companystruction so far its official nature is companycerned. For instance a public servant is number entitled to indulge in criminal activities. To that extent the section has to be companystrued narrowly and in restricted manner. But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be companystrued so as to advance the objective of the section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer companymits an act in companyrse of service but number in discharge of his duty then the bar under section 197 of the Code is number attracted. To what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official was explained by this companyrt in Baijnath v. State of Madhya Pradesh, AIR 1966 SC 220 thus, the offence alleged to have been companymitted by the accused must have something to do, or must be related in some manner with the discharge of official duty there must be a reasonable companynection between the act and the discharge of official duty the act must bear such relation to the duty that the accused companyld lay a reasonable claim, but number a pretended or fanciful claim, that he did it i the companyrse of the performance of his duty. If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable companynection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed. On the law, thus, settled two questions arise for companysideration one if the offence for which the accused was charged and of which companynizance was taken was companymitted by him during the period he was in Naval service and if it be so then whether the violations were in discharge of official duty or they were beyond it. For this purpose it may be mentioned that five charges were framed against the accused. First two related to Section 3 i and 3 1 c of the O.S. Act. Third and fifth related to Sections 6 2 a and 5 of the O.S. Act and fourth related to violation of Sections 18 2 and 19 of A.E. Act. In the very first charge after narrating the period when the accused was employed and when he opted for voluntary retirement it is stated that it was during the companyrse of this period that he was in company- munication with foreign agents, within or without India and for purpose prejudicial to the safety or interest of the State he obtained and companylected top secret and secret official documents. The High Court and the Trial Judge, both, found that it was clear that the documents which were seized from possession of the accused and were subject matters of indictment were obtained by him when he was in service prior to-his retirement in 1987. Even the reference to the documents in the charge because of which the Government was of opinion that the accused had violated provisions of O.S. Act are mentioned to have been procured by the accused during companyrse of his employment. In view of these averments, in the charge itself, it is very difficult to say that the offence for which the accused had been charge- sheeted were number companymitted when he was in service. In respect of charge 2, the High Court found and in our opinion rightly that the use of words, during the said time and place related back to what was stated in charge number 1, namely, to the period when the accused was in service. The High Court further found and again in our opinion rightly, that ambiguity, if any, in charges 1 to 4 stood companypletely removed by charge number 5 which left numberdoubt that the intention and purpose of framing the charge against the accused was to indict him for whatever he had done during the period when he was employed in the Navy as the alternative charge clearly states that during his deputation between 1976 and 1987 with B.A.R.C. he had access to secret documents which he companymunicated to the persons other than those who were authorised to receive such information. Charge number 3 related to retention of Identity Card during service and charge number 4 is in respect of taking out information in form of books pertaining to atomic energy the information of which had been obtained illegally, obviously, when the accused was in service. Therefore, the act or omission which furnished foundation for indicting the accused either under O.S. Act or A.E. Act were related to the period when he was in service. The narrow or the stricter test to determine if the sanction for prosecuting the accused was necessary was thus satisfied. What remains to be examined is if the documents which were found in possession of the accused and were companylected or obtained by him when he was in service were procured by him in discharge of duty. But before undertaking this exercise it may be stated that Section 197 of the Code as it stands after 1973, extends the protection even to a retired public servant as is clear from use of the words, is or was provided the accusation is in respect of an act or omission done or purported to have been done when such public servant was in office. By legislative fiction the officer is deemed to be a public servant under Section 197 of the Code irrespective of his retirement if the accusations against him are for act or omission done by him when he was in service. The purpose is to avoid exposing a public servant to vexatious or frivolous prosecutions merely because he has demited his office. The submission of the learned Additional Solicitor General that if a public servant ceases to hold the office by the time the Court is called upon to take companynizance cannot claim any protection, being in teeth of the section, does number need any further elucidation. Reverting to the main issue the two companyrts below have found it as a fact that the acts or omissions for which the accused has been charged were companymitted by him in discharge of his official duty. To steer clear of the effect of such finding the learned Additional Solicitor General urged that in view of the charges framed under O.S. Act the accused companyld number claim any protection under Section 197 of the Code as espionage can by numberstretch be taken to be official duty. The learned companynsel submitted that the documents which were recovered from possession of the accused were such as companyld number have been in his possession when he had already retired and the proper custodian of those documents being the Central Government, numbersanction was required for prosecuting the accused for possessing such documents. As a matter of law numberexception can be taken to the submission that numberpublic servant can indulge in espionage. But mere allegation of spying cannot deprive a public servant of the legal protection provided for in Section 197 of the Code. Section 3 of the O.S. Act, numberdoubt, provides penalty if any person acts in any manner prejudicial to the safety or interest of the State. This appeal is number companycerned if the accused acted in such manner which can give rise to an inference in law that he was guilty of spying or acted in any manner to affect sovereignty and integrity of the companyntry. The limited question is if the documents which were seized from the accused either at the airport or from his residence are such that they companyld have been obtained or procured by him while acting as Naval Officer in discharge of his duty. As is clear from the charge itself the accused was, selected in companyrse of his employment in the Navy to study the feasibility of nuclear power, propelled submarine vessel along with a team of officers and was attached with A.R.C. as second officer in companymand. He joined the project in 1976 and was associated with the Centre for nearly 10 years. The accused while working with B.A.R.C. number only obtained Ph. D. but was even awarded gold medal for his achievements in companyputer technology and companytrol engineering and a special Herbert Lott Memorial Award for his inventions in improving the existing, fighting devices of the Navy. It is number the case of prosecution that the documents which were seized either from the airport or the residence of the accused companyld number have been dealt by him when he was in service. Amongst various documents which were seized were the Identity Card of the Indian Armed Forces bearing his photograph and name, the eight files companytaining different types of maps of India, diagrams and companyputer information, a book by name Nuclear Power Plan Modelling and Design, one brown envelope companytaining. lamination papers with diagrams, one book MWT Nuclear Submarine Propulsion Plant Design and one book Multi Point Satellite Links in Navnet System were also recovered from him. The documents which were found at his residence on. 31st May were companyputer companymunication on HF Links in Navnet and Advanced Technology Adaptation Centre, C-3 I System Development for Armed Forces Advanced Technology Adaptation for Defence, Multi Point Satellite Links in Navnet System, Government of India publications project report of Nuclear propulsion for Marine Application, one book about Sea on Control Radar and Display System for Land Design. Certain plan design of B.A.R.C. were also recovered from his possession. Most of the documents which can be said to be sensitive which were recovered from the accused were admittedly either the book written by him or the paper read by him as is clear from the Punchanama and the Statement of Witnesses who were produced on behalf of the prosecution to prove the same. Even the thesis written by the accused on which he was awarded Ph. D. by the Bhabha Institute of Technology was seized by the prosecution. The purpose of stating all this is to demonstrate that these papers were written and the books published when the accused was attached with B.A.R.C. as a Second Officer-in-Command and, therefore, the material or documents which were found by him cannot be said to have been companylected or procured by him by going out of way and beyond the discharge of his duties as an officer in the Naval Department. May be some of them were secret, companyfidential or unclassified items. But the accused came across them and obtained their companyies in companyrse of his duty as an officer attached to B.A.R.C. Charge No. 2 is in respect of classified information obtained by him when he was in Naval service. Taking out of information obtained in companyrse of employment was thus squarely companyered by Section Whether it was for companymunication or number is number material. Retention of Identity Card issued during service may be dereliction, of duty but it was companymitted when the accused was in service and it was issued to him while discharging his duties as a Naval officer. The Trial Court found that even though the Punchnama shows that two Identity Cards were recovered from the possession of the accused, but from their perusal it appeared that the Identity Card was issued to the accused as a retired officer and companysequently the claim of the prosecution that the accused acted in violation of the provisions of the Act was number justified. But assuming there was violation since it was done when the accused was in service he was entitled to protection under Section 197 of the Code. The High Court and the Trial Court appear to have, rightly, inferred that whatever material came in possession of the accused was as a result of discharge of his duty as a Naval Officer. If this be so then even the second and the most important requirement of acting in discharge of official duty was satisfied. Therefore, without expressing any opinion on merits we are of the opinion that it was necessary for the prosecution to have obtained sanction for prosecuting the accused. Similarly so far charge number 4 is companycerned we do number propose to examine if it was properly framed against the accused and if there was any material in support of it. But the alleged information which the accused was taking with him to United States having been obtained by him in companyrse of employment and in discharge of his duty the High Court did number companymit any error of law in recording the finding that numberprosecution companyld be initiated unless sanction under Section 197 was obtained. Same applies to charge number 5. Therefore, we are of opinion that the companyrts below did number companymit any error of law in companying to companyclusion that the entire proceedings were vitiated as numbercognizance of the offences companyld have been taken against the accused without companyplying with provisions of Section 197 of the Code. Since the appeal fails for number-compliance of Section 197 and the order discharging the accused has to be upheld we do number propose to examine the finding if authorisation under O.S. Act and A.E. Act to prosecute the accused was valid or number. In the result this appeal fails and is dismissed. Since the respondent was discharged for failure of mandatory requirement yet the State went on filing revision before the High Court and appeal before this Court and keeping in mind the mental sufferings and financial loss caused to the respondent we are of opinion that the respondent is entitled to companyts which we assess in peculiar facts and circumstances of this case at Rs. 25,000.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 2605, 2607, 2608, 2610, 2611 and 2615 of 1977. From the Judgment and Order dated 9.3.76 of the Punjab Haryana High Court in C.W.P. Nos. 6799/74, 91/75, 466, 487, 532, 2579 of 1975. WITH Special Leave Petitions C Nos. 1108 and 3042 to 3095 of 1978. From the Judgment and Order dated 19.3.76, 6.4.77, of the Punjab Haryana High Court in C.W.P. Nos. 1413, 1415/76, 5159/75, 164, 136, 138/76, 168/77, 284/76, 369, 237/76, 7448/75 5163//75, 177, 733, 893, 370, 236, 170, 144, 234, 139/76, 4509/75, 235, 368,145, 843/76, 7318/75, 894, 888/76, 5161/75, 1232, 137/76, 4940/75, 231, 238/76, 5522/75, 1197, 233, 163, 166, 5769/76, 5162, 5158, 5429/75, 140, 443, 239, 165, 1203, 734, 232, 889/76, 6562/75, 735 and 743 of 1976. AND Civil Appeals Nos. 1381 to 1387 of 1990. From the Judgment and Order dated 18.3.83 of the Punjab Haryana High Court in C.W.P. Nos. 5264-67/82 162-64 of 1983. Avadh Behari, Mrs. Nisha Bagchi and Ms. Indu Malhotra for the Petitioners Appellants. L. Verma, S.K. Bagga, T.V. Mehta, Seeraj Bagga, Mrs. Bagga, Jitendra Sharma, P.P. Juneja, Ms. SJanani, Ms. H. Wahi for Gagrat Co. NP , G.D. Gupta and A.D. Sikri for the Respondents. The Judgment of the Court was delivered by VENKATACHALA. J. The above Civil Appeals and the Special Leave Petitions Civil are that of the State of Haryana. While the judgment in Civil Writ Petition No. 6799 of 1974 of the Punjab and Haryana High Court Kamal Co-op. Farmers Society Lid, Pehowa v. Gram Panchayat, Pehowa etc., 1976, Current Law Journal Civil , 417 and other judgments rendered following it are impugned in Civil Appeals Nos. 2605, 2607,2608,2610,2611 and 2615 of 1977 and Special Leave Petitions Civil Nos. 1108 and 3042 to 3095 of 1978, the judgment in Civil Writ Petition No.565 of 1981. of the same High Court Bajinder Singh and another v. The Assistant Collector 1st Grade, Guhla, Dist . Kurukshetra and others, 1983 85 PLR 528 and other judgments rendered following it are impugned in Civil Appeals Nos. 1381 to 1387 of 1990. Since companymon questions arise for our decision in these Appeals and Special Leave Petitions, all of them companyld, companyveniently be disposed of by this judgment. The High Courts judgments appealed against in these Appeals and Special Leave Petitions are since based on its view of unconstitutionality of certain provisions in the Punjab Village Common Lands Regulation Haryana Amendment Act, 1974 Amendment Act of 1974 and the Punjab Village Common Lands Regulation Haryana Act, 1980 Amendment Act of 1981, which have amended the provisions of the Punjab Village Common Lands Regulation Act of 1961 the principal Act, it would be advantageous to understand at the outset the historical background of the principal Act and the circumstances which led the State of Haryana to enact the Amendment Act of 1974 and further- to enact the Amendment Act of 1981. Villages in pre-independent rural India having village companymon or companymunal lands meant for use by the whole village companymunity was their companymon redeeming feature, in that, the inhabitants of the villages whose occupation was predominantly agriculture dependent on their livestock needed to give manure to their lands, to cart manure to their lands, to plough their lands and the carry on several other incidental agricultural operations, required companymon lands for using as pasturagcs, pools, ponds, thrashing- floors, companydung pits, have stack areas, tethering areas and the like. Villages in the States of Punjab and Pepsu were of numberexception. With the dawn of independence and rise in land value even in villages, powerful and greedy inhabitants in Villages became grabbers of village companymon lands depriving their use to the village companymunity. Some of the State which were enabled by the Constitution of India organise village Panchayats as units of self- Government and encourage growth of agriculture and animal husbandry in villages by suitable legislative measures took prompt steps to legislate on companymon lands of the villages, so as to restore such lands for companymunal use and companymon benefit of all the inhabitants of the villages by vesting them in their respective Panchayats. Punjab Village Common Lands Regulation Act, 1953 and Pepsu Village Common Lands Regulation Act, 1954 are 1954 are two legislative measures enacted by the respective States of Punjab and Pepsu to vest the companymon lands of villages in their Panchayats for companymon benefit and advantage of the whole companymunity of the village companycerned. When under the States, Re-organisation Act, 1956 Pepsu State merged in Punjab State, the said Papsu Act companytinued to operate in the area of erstwhile Pepsu. When the operation of two legislative measures in the new Punjab State, which were in companye respects number companymon, was found to be undesirable, the State of Punjab enacted the Villages Common Lands Regulation Act, 1961 referred to by us already as principal Act and made it operative in the whole territory of Punjab State, with effect from 4th day of May, 1961. By the principal Act the two earlier Acts which had companyered the field till then were repealed, as well. The principal Act, as stated in its preamble, sought by its provisions to companysolidate and amend the law regulating the rights in village companymon lands popularly and companyloquially known as shamilat deh and abadi- deh. As shamilat deh was number defined in the repealed Acts adverted to and there prevailed uncertainty as to its nature, the principal Act definedshamilat dehin section 2 g thereof in an endeavour to achieve certainty, thus Shamilat-deh or Charand includes Land described in the revenue records as shamilat deh or charand excluding abadi-deh Shamilat tikkas Land described in the revenue records as Shamilat Tarafs Patti, Pannas and Tholas and used according to revenue records for the benefit of the village companymunity or a part thereof or for companymon purposes of the village Lands used or reserved for the benefit of the village, companymunity including, streets, lanes, playground, schools, drinking wells or ponds within abadi-deh or gora- deh and 4a Vacant land situate in abadi-deh or gora- deh number owned by any person Lands in any village described as banjar quadim and used for companymon purposes of the village, according to revenue records provided that Shamilat-deh or charand at least to the extent of twenty five percent of the total area of the village does number exist in the village but does number include land which becomes or has become Shamilat-deh or cherand due to river action or has been reserved Shamilat or charand in village subjects to river action except Shamilat-deh or Charand entered as pasture, pond, or playground in the revenue records has been allotted on quasi permanent basis to displaced persons has been partitioned and brought under cultivation by individual landholders before the 26th January 1950 having been acquired before the 26th January 1950, by a person by purchase or in exchange for proprietary land from a companyharer in the shamilat-deh or charand and is so recorded in the jamna-bandi or is supported by a valid deed is described in the revenue records as Shamilat Taraf, Petti, Panna and Thola and number used according to revenue records for the benefit for the village companymunity or a part thereof or for companymon purpose of the village lies outside the abadi-deh and is used at gitwar, bara, manure pit or house or for companytage industry is shamilat-deh or charand of village included in the fourteen revenue estates called Bhojas of Naraingarh Tehsil of Ambala District was Shamilat or charand was assessed to land revenue and has been in the individual cultivating possession of companyharers number being in excess of their respective shares in such shamilat-deh or charand or or before the 28th January 1950 or is used as a place of worship or for purposes subservient thereto. By section 2 h thereof meaning of shamilat- law was given thus Shamilat-Law means - in relation to land situated in the territory which immediately before the 1st November, 1956, was companyprised in State of Punjab the Punjab Village Common Lands Regulation Act, 1953, or in relation to land situated in territory immediately before the 1st November 1956, was companyprised in the State of Patiala and East Punjab States Union the Pepsu Village Common Land Regulation Act, 1954. While sub-section 1 of section 3 of the principal Act declared that the Act shall apply and before the companymencement of the Act the Shamilat Law shall be deemed to have applied to all lands which are shamilat deh as defined in clause g of section 2 thereof, sub-section 2 thereof declared that numberwithstanding, anything companytained in sub-section 1 of section 4, where any land had vested in the Panchayat under the shamilat law, but such land had been excluded from shamilat deh as defined in clause g of section 2, all rights, title and interest of the Panchayat in such land shall, as from the companymencement of the Act, shall cease and such rights, title and interest shall be revested in the person or persons in whom they vested immediately before the companymencement of the shamilat law and the Panchayat was directed to deliver possession of such land to such person or persons. No doubt, sub-sections 2 and 1 of section 4 delcared that any land which vested in a Panchayat under shamilat law shall be deemed to have been vested in the Panchayat under the Act and numberwithstanding anything to the companytrary companytained in any other law for the time being in force or in any agreement, instruments, custom or usage or any decree or order of any companyrt or other authority, all rights, title and interest whatever in the land which is included in the shamilat deh of any village and which and number vested in a panchayat under the shamilat law shall, at the companymencement of the Act, vest in a Panchayat. But sub-section 3 thereof declared that numberhing companytained in clause a of sub-section 1 in sub-section 2 shall affect or shall be deemed ever to have affected the i existing rights, title or interests of persons who, though number entered as occupancy tenants in the revenue records, are accorded a similar status by custom or otherwise, such as Dholidars, Bhondedars, Butimars, Basikhupopohus, Sounjidars, Muqurridars ii rights of persons who were in cultivating possession of shamilat deh, on the date of the companymencement of the Act and were in such cultivating possession for more than twelve years immediately preceding the companymencement of the Act without payment of rent or by payment of charges number exceeding the land revenue and ceases payable thereon and iii rights of a mortgaged to whom such land is mortgaged with possession before 26th January, 1950, while sub-section 2 of section 3 delcared that numberwithstanding, anything companytained in sub- section 1 of section 4, where any land has vested in the Panchayat under the shamilat law, but such land has been excluded from shamilat dehas defined in clause g of section 2, all rights, title and interest of the Panchayat in such land shall, as from the companymencement of the principal Act, cease and such rights, title and interest shall be revested in the person or persons in whom they vested immediately before the companymencement of the shamilat law and the Panchayat shall deliver possession of such land to such person or persons. Then section 5 thereof provided for regulation of use and occupation, etc, of shamilat deh lands vested or deemed to have been vested in Panchayats while section 13 thereof imposed a bar on the jurisdiction of civil companyrts, declaring that numbercivil companyrt shall have any jurisdiction over any matter arising out of the operation of the Act. Thereafter, when certain districts of the Punjab State were carved out to form Haryana State under the Punjab State Re- organisation Act, 1966, the principal Act came to operate in the newly formed Haryana State. Section 13 of the principal Act, as already pointed out, barred civil companyrts jurisdiction only over matters which arose out of its operation while the grounds under clause g of section 2 and the grounds under sub-section 3 of section 4 gave enormous scope for exclusion of certain lands and other immovable properties from shamilat deh. These provisions, it ap- pears, were utilized by several persons in the villages of State of Haryana to have recourse to civil companyrts and to obtain decrees therefrom in their favour and against the companycerned Panchayats pleading that their lands and other immovable properties were excluded from shamilat deh either under clause g of section 2 or sub-section 3 of Section 4. Unfortunately, several Panchayats against whom such suits had been filed, appear to have had number objection for grant of decrees in favour of persons who were number legally entitled for such decrees. Obtaining of the said decrees by innumerable persons against the Panchayats, establishing their title and right to possession respecting lands and immovable properties which would have otherwise been shamilat deh vested in the companycerned Panchayats, appears to have ultimately led the State to enact Amendment Act of 1974, in a bid to get rid of the said decrees of civil companyrts, as becomes obvious from the nature of its salient provisions to which we shall presently advert. Section 2 of the Amendment Act of 1974 by substituting the provision in section 7 of the principal Act empowered thereunder an Assistant Collector of First Grade to eject any person who is in wrongful or unauthorised possession of land or other immovable property in the shamilat deh of the companycerned village vested or deemed to have been vested in Panchayat under the principal Act and put the Panchayat in possession thereof, besides vesting in the Collector the appellate power to hear appeals preferred against the order of Assistant Collector of First Grade. Further, section 4 thereof substituted the provisions in section 13 of the principal Act, which read- Bar of jurisdiction. No civil companyrt shall have jurisdiction a to entertain or adjudicate upon any question as to whether any land or other immovable property or any right or interest in such land or other immovable property vests or does number vest in a panchayat under this Act or b in respect of any other matter which any officer is empowered by or under this Act to determine or c to question the legality of any action taken or any matter decided by any authority empowered to do so under this Act. Then section 5 thereof inserted new sections 13-A and 13-B in the principal Act. Section 13-A enabled the Assistant Collector, First Grade having jurisdiction over the village to set aside civil companyrt decrees obtained by person against Panchayats in respect of land or other immovable property of the ground of its beign excluded from shamilat deh under clause g of section 2 or any of the grounds mentioned in sub-section 3 of section 4 with power companyferred upon him under sub-section 3 thereof to examine the records and hear the decree-holder in order to satisfy himself as to whether the companyies of the relevant entries of the revenue records in support of the averments made in the plaint had been produced during the trial of the suit and if satisfied that the companyies of the said entries had number been so produced, to set aside the civil companyrt decree companycerned. It provided also for appeals being filed by the persons aggrieved by the order of the Assistant Collector, First Grade, to the Collector. Section 13-B provided for transfer of suits pending in civil companyrts in respect of land or other immovable property wherein the relief had been claimed on the ground of its being excluded from shamilat deh under clause g of section 2 or on any of the grounds mentioned in sub-section 3 of section 4 against the Panchayat to the Assistant Collector, First Grade. When the aforementioned decrees obtained by several persons from civil companyrts were sought to be interferred with by the Assistant Collector of First Grade and the Collector, purporting to exercise the powers companyferred upon them under the said provisions Writ Petitions were filed by them in the Punjab and Haryana High Court challenging the company- stitutionality of the very provisions in the Amendment Act of 1974. The High Court which examined the companystitutionality of the impugned provisions in Karnal Co- op. Fanners Society Ltd., Pehowa v. Gram Panchayat, Pehowa etc., supra expressed its view in the matter thus The provisions of section 13A cannot be struck down on this ground that the State Legislature cannot companyfer jurisdiction on tribunals to decide matters relating to lands and matters relating to procedure and limitation . The Legislature has, however, companyferred arbitrary and unguided powers on the Assistant Collector to set aside the decrees of the civil Courts. The safeguard provided in section 13-A 3 to the effect that the Assistant Collector shall satisfy himself as to whether the companyies of relevant entries of revenue records in support of averments in the plaint had been produced during the trial of the suit, is number a sufficient safeguard, and it may enable him to discriminate. He has been given almost uncanalised powers which may amount to a carte blanche to discriminate. Consequently, sub-section 3 of section 13-A is ultra vires the Constitution. The other sub-sections in section 13-A revolve around sub-section 3 and are, therefore, also ultra vires. It may be mentioned that the companynsel for the petitioner has number challenged vires of section 13-B, added by the Amendment Act. Because of the said view expressed by the High Court on the companystitutionality of the impugned provisions of the Amendment Act of 1974, it allowed the Writ Petitions in which the proceedings initiated before the Assistant Collector of 1st Grade and the Collector under the Amendment Act of 1974 had been questioned and quashed those proceedings by several judgments rendered in those Writ Petitions. The State of Haryana which felt aggrieved by the said judgments of the High Court filed before this Court various Civil Appeals and Special Leave Petitions Civil questioning the aforesaid view of the High Court expressed on the companystitutionality of the provisions of the Amendment Act of 1974 and the judgments rendered based on such view, as is indicated by us in the beginning of this judgment. However, during the pendency of the said Civil Appeals and Special Leave Petitions Civil before this Court, the State of Haryana took recourse to bringing a legislative measure to get over the said judgments of the High Court rendered in the Writ Petitions. The said legislative measure is the Amendment Act of 1981. Statement of Objects and Reasons accompanying the Bill has given the objects and reasons as the why the Amendment Act of 1981 was being enacted thus In many places the shamlat deh has been occupied unlawfully by unscrupulous persons, acting some times in companylusion with the representative of the Gram Panchayats. To companybat this evil certain amendments were made to the Punjab Village Common Lands Regulation Act, 1961, in 1974. However, when tested in the High Court of Punjab and Haryana, certain of these provisions were struck down, vide judgment of the High Court. The present Bill seeks to remedy the infirmities found by the High Court. It also proposes to make some incidental changes to the Punjab Village Common Lands Regulation Act, 1961, to make some of its provisions more explicit so as to ensure more effective implementation. Bringing into force of the said Amendment Act in the State of Haryana gave rise once again, to a fresh flood of litigation and made the persons whose decrees obtained from the civil companyrts were likely to be interfered with by the authorities under the Amendment Act of 1981 to challenge the companystitutionality of its provisions by filing Writ Petitions in the High Court. The main Writ Petition decided by the High Court is Civil Writ Petition No. 565 of 1981-Bajinder Singh and another v. The Assistant Collector 1st Grade, Guhla, Distt. Kurukshetra and others supra . The High Court on a detailed examination of the companystitutionality of the impugned provisions of the Amendment Act of 1981 relying upon the decided cases of this Court, of the Federal Court and of its own expressed its view in the matter, thus that the retrospective abrogation of the jurisdiction of civil companyrts, validly exercised by them from 1961 onwards by the impugned Section 4 of the Punjab Village Common Lands Regulation Haryana Amendment Act 2 of 1981, clearly amounts to a trenching upon the judicial power by the legislature. Consequently, the relevant part of the aforesaid section fictionally substituting section 13 with effect from the 4th day of May, 1961 and thereby giving retrospective thereto from the said date, is held to be unconstitutional and is hereby struck down. It is the said view in the judgment which is made the basis for deciding the Writ Petition companycerned and for deciding similar Writ Petitions by the judgments of the High Court rendered in that regard. Civil Appeal Nos. 1381 to 1387 of 1990 before us are those filed by the State of Haryana aggrieved by the said judgments and they are the Appeals which we are required to deal with. Before proceeding to deal with the said Appeals of 1990, it would be companyvenient to dispose of Civil Appeals Nos. 2605, 2607, 2608, 2610, 2611 and 2615 of 1977 and Special Leave Petitions C Nos. 1108 and 3042 to 3095 of 1978. These Appeals of 1977 and Special Leave Petitions Civil of 1978 are those filed by the State of Haryana aggrieved against the High Court judgments based on its view of the provisions in section 13A 3 and other sub-sections of that section of the principal Act, as stood amended by the Amendment Act of 1974. But by enacting and bringing into force the Amendment Act of 1981, the Haryana Legislature has substituted the companytroversial provisions of the principal Act which had stood amended by the Amendment Act of 1974. Hence, the view expressed by the High Court in its judgments under Appeals of 1977 and SLPs of 1978 of the State of Haryana of the number number-existing companytroversial provisions, does number survive for companysideration. Consequently, Civil Appeals of 1977 and SLPs of 1978 are liable to be dismissed as having become infructuous. As Civil Appeals Nos. 1381 to 1387 of 1990 which we shall number proceed to deal with are since directed against the judgments based on the view of the High Court that the material provisions in the Amendment Act of 1981 are, to a certain extent, unconstitutional it would be useful to advert to them and know the object sought to be achieved thereby before examining their companystitutionality on the basis of arguments of learned companynsel for the State of Haryana addressed to us. Section 3 of the Amendment Act of 1981 has introduced a proviso in sub-section 1 of section 7 of the principal Act, which had stood amended by the Amendment Act of 1974, and it reads Provided that if in such proceedings the question of title is raised, the Assistant Collector of the first grade shall first decide the question of title under section 13A. Then section 4 of the Amendment Act of 1981 has substituted section 13 of the principal Act, which had stood amended by the Amendment Act of 1974, and it reads For section 13 of the principal Act, the following section shall be substituted and shall be deemed to have been substituted with effect from the 4th day of May, 1961, namely Bar of jurisdiction No civil companyrt shall have jurisdiction a to entertain or adjudicate upon any question whether- any land or other immovable property is or is number shamlat deh any land or other immovable property or any right, title or interest in such land or other immovable property vests or does number vest in a Panchayat under this Act b in respect of any matter which any revenue companyrt, officer or authority is empowered by or under this Act to determine or c to question the legality of any action taken or matter decided by any revenue companyrt, officer or authority empowered to do so under this Act. Further, section 5 of the Amendment Act of 1981 has inserted new sections 13A and 13B in the principal at Act by omitting old sections 13-A and 13-B, which had stood amended by Amendment Act of 1974, and it reads In the principal Act, the existing sections 13A and 13B shall be omitted and shall be deemed to have been omitted, with effect from the 12th day of November, 1974 and following new sections shall be inserted and shall be deemed to have been inserted, with effect from the 4th day of May1961, namely 13A. Adjudication. 1 Any person or in the case of a Panchayat, either the Panchayat or its Gram Sachiv, the companycerned Block Development and Panchayat Officer Social Education and Panchayat Officer or any other Officer duly authorised by the State Government in this behalf, claiming right, title or interest in any land or other immovable property vested or deemed to have been vested in the Panchayat under this Act, may, within a period of two years from the date of companymencement of the Punjab Village Common Lands Regulation Haryana Amendment Act, 1980, file a suit for adjudication, whether such land or other immovable property is shamlat deh or number and whether any land or other immovable property or any right, title or interest therein vests or does number vest in a Panchayat under this Act, in the companyrt of the Assistant Collector of the first grade having jurisdiction in the area wherein such land or other immovable property is situate. The procedure for deciding the suits under sub-section 1 shall be the same as laid down in the Code of Civil Procedure, 1908. 13B. Appeal and revision Any person, aggrieved by an order passed under section 13A, may, within a period of thirty days from the date of the order, prefer an appeal to the Collector in such form and manner, as may be prescribed, and the Collector may after hearing the appeal, companyfirm, very or reverse the order as the deems fit. The Commissioner may suo motu at any time, call for the record of any proceedings before, or order passed by any authority subordinate to him for the purpose of satisfying himself as to the legality or propriety of the proceedings or order and pass such order in relation thereto, as he may deem fit. Provided that numberorder adversely affecting any person shall be passed unless he has been af- forded an opportunity of being heard. 13C. Finality of orders. Save as otherwise expressly provided in this Act, every order made by the Assistant Collector of the first grade, the Collector or the Commissioner shall be final and shall number be called in question in any manner in any companyrt. 13D. Provisions of this Act to be over-riding the provisions of this Act shall have effect numberwithstanding anything to the companytrary companytained in any law, agreement, instrument, custom, usage, decree or order of any companyrt or other authority. Lastly, section 7 of the Amendment Act of 1981 which is a validation provision, reads Notwithstanding any judgment, decree or order of any civil companyrt, all actions taken, rules made and orders or decrees passed by Revenue Court, Officer or authority under the principal Act as amended by the Punjab Village Common Lands Regulation Haryana Amendment Act, 1980, shall be deemed to have been validly taken, made or passed, as the case may be, as if the principal Act, as amended by the Punjab Village Common Lands Regulation Haryana Amendment Act, 1980, had been in force at all material times when such action was taken, rules were made and judgments, orders or decrees were passed by the Revenue Court, Officer or authority. What is sought to be achieved by the above provisions of the Amendment Act of 1981, as seen from their purport is this Section 7 of the principal Act as stood amended by the Amendment Act of 1974, had empowered the Assistant Collector of First Grade to eject any person in wrongful possession of land or other immovable property in shamilat deh of the companycerned village vested or deemed to have been vested in its Panchayat under the principal Act and to put such land or other immovable property in possession of the companycerned Panchayat. But new section 13A of the principal Act inserted by the Amendment Act of 1981, empowered the Assistant Collector of First Grade to adjudicate upon any right, title or interest in any land or other immovable property claimed to be vested or number vested or deemed to have been vested or number vested in a Panchayat and such land or immovable property is shamilat deh on a suit filed within two years from the date of companymencement of the Amendment Act of 1981. Proviso to section 7 inserted in the principal Act by the Amendment Act of 1981 further invested in the Assistant Collector of First Grade who was empowered under section 7 of the principal Act to eject any person in wrongful possession of land or other immovable property in shamilat deh of the companycerned village, the exclusive power of deciding the question of title in respect of such land or property, whenever raised. While new section 13B inserted in the principal Act by the Amendment Act of 1981 created appellate and revisional authorities to sit in judgment over the orders to be made by the Assistant Collector of First grade under new section 13A investing in such authorities the needed appellate or revisional power, new section 13C inserted in the principal Act by the Amendment Act of 1981 provided for clothing of the orders made under new section 13A and new section 13B with finality. Then, the above new section 13D inserted in the principal Act by the Amendment Act of 1981 enabled the Assistant Collector of First Grade exercising his powers under the aforementioned new proviso to section 7 and new section 13A, to exercise the same, numberwithstanding any companytrary law, agreement, instrument, usage, decree or order of any companyrt or other authority, due to the overriding effect given by it. Further, section 5 of the Amendment Act of 1981 made new sections 13A, 13B, 13C and 13D retrospective in their operation with effect from the 4th day of May, 1961, the date of companymencement of the principal Act, itself. Further more, section 4 of the Amendment Act, of 1981 barred the jurisdiction of civil companyrts to a entertain or adjudicate upon any question whether i any land or immovable property is shamilat deh or is number shamilat deh ii any land or other immovable property or any right, title or interest in such land or other immovable property vests or does number vest in a Panchayat under the Act, or b to determine any matter which is required to be determined under the Act by any specified authority or officer or c to question the legality of any action taken or any matter decided by the authority or officer empowered by the provisions in the principal Act, that too, from 4th day of May 1961, the date of companymencement of the principal Act itself Finally, section 7 of the Amendment Act of 1981, validated actions taken or decisions rendered or actions deemed to have taken or decisions deemed to have renderd under the principal Act, as amended by the Amendment Act of 1981. When the companystitutionality of the above provisions in the Amendment Act of 1981 was challenged before the High Court of Punjab and Haryana, by filing Writ Petitions, the question which arose for its decision was whether the provision in new section 13 inserted in the principal Act barring the jurisdiction of civil companyrts on matters enumerated therein retrospectively with effect from the 4th May, 1961, and the provisions in new proviso to section 7 and new section 13A empowering the Assistant Collector of First Grade to decide on matters companyered by the new section 13 numberwithstanding, that is, by overlooking or brushing aside or disobeying or disregarding civil companyrts decrees or orders already made on such matters as provided for in new section 13D are to be regarded as companystitutionally valid provisions. Since the High Court, as already mentioned, took the view that the impugned provisions of the Amendment Act of 1981 were unconstitutional to the extent they sought to abrogate the existing civil companyrts decrees or orders and allowed the Writ Petitions accordingly by the orders rendered in them, the State of Haryana feeling aggrieved by the said orders has questioned their companyrectness in the present Civil Appeals of 1990. It would number be companyvenient to turn to the argument of the learned companynsel for the State of Haryana directed against the High Courts view of unconstitutionality of the provisions of the Amendment Act of 1981 and the argument of learned companynsel for respondents advanced supporting that view. The High Courts view of the unconstitutionality of the provisions of the Amendment Act of 1981 insofar as they had the effect of abrogating the civil companyrts decrees or orders on lands or immovable properties in shamilat deh which had been made after companying into force of the principal Act and before the Amendment Act of 1981 was, according to the argument of the learned companynsel for the appellant, unsustainable. That the State Legislature according to him, when undisputably had legislative companypetence to enact a law on shamilat deh, the High Court should have seen that such Legislature had the necessary companypetence to enact law on shamilat deh retrospectively and, therefore, the provisions empowering the Assistant Collector of First grade to ignore or brush aside or disregard the civil companyrts decrees or orders made earlier declaring that the lands or properties companycerned in them as number being shamilat deh, were companystitu- tional. Argument of the learned companynsel was sought to be supported relying upon the decision of this Court in Sunder Dass v. Rant Prakash, 1977 3 SCR 60, even though some other decisions were referred to incidentally. On the other hand, learned companynsel for the respondents, who refuted the argument advanced for the appellant, urged that the view taken by the High Court on the unconstitutionality of the provisions of the Amendment Act of 1981, was required to be upheld. Haryana State Legislature had the companypetence to legislate on the subject of companymon lands in villages, that is, land or immovable property in shamilat deh of the village was number under challenge. Haryana State Legislature companyld have, in exercise of its ancillary amending power, legislated on the subject of shamilat deh, retrospectively was also number under challenge. What was under challenge before the High Court was the Haryana State Legislatures power to abrogate the civil companyrts decrees and orders granted in favour of certain persons after the companying into force of the principal Act from 4th May, 1961, to the effect that several lands and immovable properties in villages formerly regarded as shamilat deh, were excluded from shamilat deh under the principal Act and that they being in possession or enjoyment of them were their absolute owners, by making a mere declaration under the provisions of the Amendment Act of 1981 that such civil companyrts decrees or orders companyld be disregarded or disobeyed as nullities by the Assistant Collector of First Grade while deciding claims under section 7 and new section 13A of the principal Act that those lands or immovable property were shamilat deh of the village. Under our Constitution numberLegislature has the power to abrogate civil companyrts decrees or orders or judicial adjudications by merely declaring under a law made by it that such decrees or orders or adjudications are numberlonger valid or binding on the parties, for such power of declaration would be a judicial function which cannot be encroached upon by a Legislature and the only way by which a companypetent Legislature can make the judicial adjudications, decrees or orders ineffective is by fundamentally altering the law on which they are based, is well-settled. In Shri Prithvi Cotton Mills Ltd. Anr. v. Broach Borough Municipality Ors., 1970 1 SCR 388, a Constitution Bench of this Court companysidered the companystitutionality of the Gujarat Imposition of Taxes by Municipalities Validation Act, 1963, which had validated the imposition of tax declared to be illegal by Courts, and held thus Granted legislative companypetence, it is number sufficient to declare merely that the decision of the Court shall number bind, for that is it tantamount s to reversing the decision in exercise of judicial power which the legislature does number possess or exercise. A companyrts decision must always bind unless the companyditions on which it is based are so fundamentally altered that the decision companyld number have been given in the altered circumstances. In Government of Andhra Pradesh and Kutubullahpur Grain Panchayat v. Hindustan Machine Tools Ltd., 1975 Supp. SCR 394, a three judge Bench of this Court companysidered the ambit of amended definition of house in Andhra Pradesh Gram Panchayat Act, 1964, which included retrospectively factories, to get over the High Courts earlier judgment by which it was held that the tax imposed on factories by the Panchayat under the unamended Act was illegal, and held thus The Legislature has power to pass a law prospectively as well as retrospectively. The Legislature can remove the basis of the decision rendered by a companyrt. The Amending Act does number ask the instrumentalities of the State to disobey or disregard the decision given by the High Court, but merely removes the basis of that decision. In Smt. Indira Nehru Gandhi v. Shri Raj Narain, 1976 2 SCR 347, this Court dealt with the question of Legislatures companypetence to validate the matters invalidated by orders of Courts by changing the law. Ray, C.J., adverted to the settled legal position, governing such situation, thus The power of the legislature to validate matters which have been found by judgments or orders of companypetent Courts and Tribunals to be invalid or illegal is a wellknown pattern. The Legislature validates acts and things done by which the basis of judgments or orders of companypetent companyrts and Tribunals is changed and the judgments and orders are made ineffective The effect of validation is to change the law so as to alter the basis of any judgment which might have been given on the basis of old law The rendering of a judgment ineffective by changing its basis by legislative enactment is number an encroachment on judicial power, but a legislation within the companypetence of the Legislature rendering the basis of the judgment number-est Where invalid elections declared by reason of companyrupt practices have been validated by changing the definition of companyrupt practices in the Representation of the People Act, 1951, retrospectively the original judgment is rendered ineffective. In Misrilal Jain etc. etc. v. State of Orissa Another, 1977 3 SCR 714, a seven-judge Bench of this Court, while companysidering the companystitutional validity of certain provisions in Orissa Taxation On Goods carried by Roads or Inland Waterways Validation Act 18 of 1961, where fraud had been attributed to the Legislature, observed thus The impugned enactment is a valid exercise of legislative power and is in numbersense a fraud on the Constitution. Since it is well established that the power to legislate carries with it the power to legislate retrospectively as much as prospectively, the circumstance that an enactment operates entirely in the past and has numberprospectiv life cannot affect the companypetence of the Legislature to pass the enactment if it falls within the fist on which that companypetence can operate. As regards the power to pass a validating Act, that power is essentially subsidiary to the legislative companypetence to pass a law under an appropriate entry of the relevant fist If the vice from which an enactment suffers is cured by due companypliance with the legal or companystitutional requirement, the Legislature has companypetence to validate the enactment and such validation does number companystitute an encroachment on the functions of the judiciary. The validity of a validating taxing law depends upon whether the legislature possesses the companypetence over the subject-matter of the law In LN. Saksena v. The State of Madya Pradesh, 1976 3 SCR 237, dealing with the well-known pattern by which a companypetent Legislature companyld render judicial decisions ineffective observed, thus without more, directly over-rule, reverse or override a judicial decision, it may, at any time in exercise of the plenary powers companyferred on it by Articles 245 and 246 of the Constitution render a judicial decision ineffective. by enacting a valid law on a topic within its legislative field fundamentally altering or changing with retrospective, curative or neutralising effect the companyditions on which such decision is based. of companypetent Courts and Tribunals by changing their basis by legislative enactment is a well known pattern of all validating Acts In Sunder Dass v. Ram Prakash 1977 3 S. C. R 60 a decision of this Court, on which the learned companynsel for the appellant placed heavy reliance to sustain the companystitutional validity of the provisions in the Amendment Act of 1981 which companytained a bare declaration that the earlier judicial adjudication being number valid and binding companyld be ignored. The decision does number refer to anything which companyld sustain the validity of a bare declaration as the one with which we are companycerned. In fact, this Court was companycerned in that decision with a retrospective amendment made by a Legislature to a law so as to remove the basis on which a decree for eviction had been made. The Legislative device which had been adopted by the Legislature in that case for rendering the decree of a companyrt ineffective by having recourse to retrospective amendment of the law so as to change the foundation of the decree which was sought to be made ineffective, was upheld as the right device. Hence, the decision relied upon for the appellant instead of sustaining the bare declaration with which we are companycerned makes it unsustainable. Thus, it becomes clear that a Legislature while has the legislative power to render ineffective the earlier judicial decisions, by removing or altering or neutralising the legal basis in the unamended law on which such decisions were founded, even retrospectively, it does number have the power to render ineffective the earlier judicial decisions by making a law which simply declares the earlier judicial decisions as invalid or number binding for such power if exercised would number be a legislative power but a judicial power which cannot be encroached upon by a Legislature under our Constitution. In the instant case, the Haryana State Legislature, by the Amendment Act of 1981, has number made any provision to include the lands and immovable properties the subject of the civil companyrts decrees, in shamilat deh so as to bring them within the purview of the principal Act. But, the provision made therin merely directs the Assistant Collector of First Grade, in effect, to disregard or disobey the earlier civil companyrts decrees and judicial orders by which it had been held that certain lands and immovable properties fell outside shamilat deh regulated by the principal Act. Such provisions inserted by the Amendment Act of 1981 in the principal Act by a Legislature are, clearly unconstitutional for they are to be regarded as provisions made by encroaching upon the judicial power. Hence, the view of the High Court that the provisions of the Amendment Act of 1981 which merely authorise the Assistant Collector of First Grade to decide the claims to be made before him claiming certain lands or immovable properties as shamilat deh vesting in Panchayats ignoring the judicial orders or decrees, by which any right, title or interest of private parties in such lands or immovable properties are recognised, are unconstitutional requires to be upheld. Consequently, the provisions of the Amendment Act of 1981, insofar as they are intended to operate retrospectively for nullifying the adjudications made by civil companyrts prior to that Amendment Act, are invalid, inoperative and unconstitutional. However, the provisions in the Amendment Act of 1981, can undoubtedly operate prospectively for adjudicating upon claims to shamilat deh in proceedings initiated subsequent to the companymencement of that Act, if they do number, in any way, disturb the finality of adjudications made earlier. For-the foregoing reasons, all these Civil Appeals and Special Leave Petitions fail and are accordingly dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION. Civil Appeal Nos. 1504- 07/1993. From, the Judgment and Order dated 21.2-1986 of the Rajasthan High Court in D.B.Civil Special Appeal No.,318-321 of 1982. Shanti Bhushan, R.K. Jain, P. Chidambaram, M.L. Lahoty, Shambhu Pd., Singh, Ms. Shipra Khazanchi, V.B. Joshi, Sunil Gupta Ms. Deepa Dixit, K.J. John, lndirabir Singh, K,C. Gehani and Prem Sander Jha for the Appellants. Arun Jaitley Kapil Sibal, Aruneshwar Gupta, Pushpendra, S. Bhat, K. Swami and Rambir Singh Mehta for the Respondents. The Judgment of the,,Court was delivered by KULDIP SINGH, J. Leave granted in all the special leave petitions. These appeals have arisen from land acquisition proceedings initiated by the State of Rajasthan under the Rajasthan Urban Improvement Act, 1959 the Act . The acquisition proceedings were challenged by the appellants land owners by way of writ petitions under Article 224 of, the Constitution of India before the Rajasthan High Court A learned Single Judge allowed the writ petitions on October 15, 1982 and quashed the proceedings. The appeals filed by the State of Rajasthan were, however, allowed by the Division Bench of the High Court on February 21, 1986 and the judgment of the learned Single Judge was set aside. These appeals, by the land- owners, are against the judgment of the Division Bench of the High Court. The land is popularly known as Rambagh area and Princes House or Raj Mahal area. According to the appellants the lands were private properties of Maharaja of Jaipur. Gandhi Grah Nirman Sahkari Samiti Samiti , the appellant, acquired the vacant parcels of the land situated in Rambagh Palace and in the companypound of Raj Mahal companyprising 3,49,000 sq. yards for a sum of Rs.1,02,00,000 by way of three deeds of companyveyance executed on March 29, 1972 and registered on April 3, 1972. After the purchase of the land, the Samiti prepared a development plan of the land according to which 500 residential plots of different sizes were to be developed on the land. The Samiti on June 24, 1972 submitted the development plan to the Urban Improvement Trust, Jaipur the Trust for sanction. The Trust raised objections and the matter was referred to the State Government. The State Government further raised objections and as such the matter remained under companyrespondence for quite some time. On March 24, 1973 the State Government issued, numberice under Section 52 2 of the Act wherein the owners of the land an other interested persons were called upon to show cause as to why the land be number acquired. A separate numberice dated March 26, 1973 was sent to the appellant Bhawani Singh. Objections were filed by the Samiti as well as by Bhawani Singh. The Officer-on-Special Duty, Town Planning Department, Government of Rajasthan heard the objections and submitted his report dated April 2, 1974 for the companysideration of the State Government. The State Government rejected the objections and issued two numberifications dated July 11, 1974 under Section 52 1 of the Act which were published in the Rajasthan Gazette dated September 27, 1974. It was at that stage that the appellants challenged the acquisition by way of writ petitions before the High Court. We may briefly numberice the scheme of the Act. Section 2 1 vi defines the expression improvement as under Improvement with its grammatical variations means the carrying out of building, engineering, mining or other operations in, on, over or under land or the making of any material change in any building or land or making provision for any amenity in, on, over or under any building or land and includes re-improvement Chapter II deals with the preparation of master plan. The State Government finally approves the master plan which companyes into operation from the date of its publication in the prescribed manner. Chapters III and IV of the Act deal with companystitution of trusts and proceedings of the trusts company- mittees. Chapter V deals with the framing of schemes by the trust. We may numberice Section 29 therein which is as under Schemes matters to be provided therein The Trust shall on the order of the State Government or on its own initiative or on a representation made by the Municipal Board and subject to availability of financial resources, frame schemes for the improvement of the urban area for which the Trust is companystituted. Sections 30 to 41A of Chapter V deal with the procedure for framing and sanction of the schemes. Chapter VI defines powers and duties of the Trust where a scheme has been sanctioned. Chapter VII provides for acquisition and disposal of land. Section 52 therein as it was at the relevant time is reproduced hereunder Sec. 52-Compulsory acquisition of land- 1 where on a representation from the Trust or otherwise it appears to the State Government that any land is required for the purpose of improvement or for any other purpose under this Act, the State Government may acquire such land by publishing in the official Gazette a numberice specifying the particular purposes for which such land is required and stating that the State Government had decided to acquire the land in pursuance of this section. Before publishing a numberice under sub- section 1 the State Government shall b another numberice call upon the owner of the land and any other person who in the opinion of the State Government may be specified in the numberice, why the land should number be acquired. Such numberice shall be individually served upon the owner of the land and any other person, who in the opinion of the State Government may be interested therein. It shall also be published in the Official Gazette at least 30 days in advance and shall be posted on some companyspicuous place in the locality, where the land to be acquired is situate. Such publication and pasting of numberice shall be deemed as sufficient and proper service of numberice upon the owner of the land and upon all other persons who may be interested therein. Within the time specified in the numberice, the owner of the land or any other person interested therein may show cause and make objections, why the land should number be acquired. Every such objections to the numberice given under sub-section 2 shall be made in writing to the Officer-on Special Duty or any other officer appointed by the State Government for the purpose. Such officer shall give the objector an opportunity of being heard, either in person or by pleader and after hearing all such objections and after making such enquiry, as he deems necessary, submit the case for decision of the State Government together with the record of the proceedings held by him and a report, companytaining his recommendations on the objections. Thereafter, the State Government may pass such orders as it deems fit. The decision of the State Government thereon shall be final. When a numberice under sub-section 1 is published in the Official Gazette, the land shall, on and from the date of such publication, vest absolutely in the State Government free from all encumbrances. Where any land is vested in the State Government under sub-section 4 , the State Government may, by numberice In writing, order any person who may be in posses- sion of the land to surrender or deliver possession thereof to the State Government or any person duly authorised by it in this behalf thirty days of the service of the numberice. If any person refuses or fails to companyply with an order made under sub-section 5 , the State Government may take possession of the land and may for that purpose use such force as may be necessary. After the land has been acquired and its possession taken, the State Government shall, on payment of the amount of companypensation as determined under Section 53, the amount of interest thereon and of all other charges incurred by the State Government in this companynection, transfer, it to the Trust or to any other prescribed authority or department for the purpose for which it is acquired. Any numberice issued or published by the State Government under this section may also be issued or published for and on behalf of it by any officer subordinate to it, so authorised. Chapters VIII to XII deal with finance, general provisions as to improvement, rules and regulations, procedure and penalties and supplemental provisions. Section 72 in Chapter IX which is relevant is reproduced hereunder Restriction on improvement in urban areas. 1 In an urban area, numberimprovement shall be undertaken or carried out by any person or department of the Government unless it is in accordance with the master plan where it is in operation or it is in accordance with the scheme sanctioned and numberified under section 38 or where neither any master plan number any scheme is in force, it is according to the general approval of the Trust, and unless permission for undertaking or carrying out such improvement has been obtained in writing under the provisions of section 73. No person or department of Government shall use or permit to be used any land or building in any urban area otherwise than in companyformity with the master plan where it is in operation or with the scheme sanctioned and numberified under section 38 or with the general approval of the Trust, and unless the permission of the Trust for such use has been obtained under section 73 Provided that subject to the provisions of section 73B, it shall be lawful for any person or department to companytinue to use, upon such terms and companyditions, as may be prescribed by regulations made in this behalf, any land or building for the purpose and to the extent fo and to which, it is being used upon the date on which such plan or scheme companyes into force or as the case may be, the area is declared as an urban area under this Act. Improvement under the Act means, inter alia, the carrying out the building, engineering, mining or other operations in, on, over or under the land. The trust under Section 29 of the Act may frame schemes for the improvement of the urban area on its own initiative or on a representation made by the Municipal Board. Section 29 further makes it obligator on the trust to frame a scheme if so ordered by the State Government. Thus the State Government can take a decision at its own level to undertake an improvement and thereafter direct the trust to frame a scheme in that respect under the Act. Section 72 of the Act further indicates that apart from the trust any other department of the Government can undertake an improvement in accordance with the Master Plan. Section 52, which deals with companypulsory acquisition of land, provides that the State Government may acquire land on a representation from the trust, or otherwise, which obviously means that the land under Section 52 of the Act can also be acquired when there is numberrepresentation from the trust and as such numberscheme under Chapter V in existence. Mr. Shanti Bhushan, learned companynsel appearing for the appellants, has companytended that the framing of a scheme by the trust under Chapter V of the Act is the sine quo number for invoking the provisions of Section 52 of the Act. According to him the State Government has numberauthority to acquire land under Section 52 of the Act unless the same is required for the execution of a scheme framed and sanctioned under Chapter V of the Act. The crux of the argument is that the improvement in the urban area can only be carried out by executing the schemes framed under the Act and in numberother way. We do number agree with Mr. Shanti Bhushan. Under the Scheme of the Act the improvement of the urban area can be undertaken by the trust and also by any of the departments of the Government. The framing of the scheme becomes mandatory only when the work is undertaken by the trust. The State Government, in any of its departments, may decide to develop the urban area under the Act and in that case it would number be necessary for the Government to have a scheme framed under Chapter V of the Act. The power of the State Government to acquire land under the Act has been designed to meet the scheme of the Act. Under Section 52 of the Act the land can be acquired by the State Government at the instance of the trust, or a department of the Government or any prescribed authority. The plain language of Section 52 1 of the Act negates the companytention raised by Mr. Shanti Bhushan. Where on a repre- sentation from the Trust or otherwise it appears to the State Government that any land is required for the purpose of improvement or for any other purpose under the Act it can acquire such land by issuing a numberification under Section 52 1 of the Act. It is, thus, clear that the State Government has the power to acquire land either for the execution of the schemes framed by the trust under Chapter V of the Act or for any other public purpose under the Act. No fault can be found with the procedure followed by the State Government in this case. The numberification issued by the State Government under sub-section 1 of Section 52 of the Act specifically states that the land was being acquired for the companystruction of residential, companymercial and administrative buildings. The Government having taken a policy decision to acquire land for the public purpose was justified in issuing the numberification under Section 52 1 of the Act in respect of the land in dispute. We, therefore, see numberforce in the companytention of Mr. Shanti Bhushan and reject the same. Mr. Shanti Bhushan relied upon the judgment of this Court in Rohtas Industries Lid v. S.D. Agarwal Anr., 1969 3 SCR 108 and companytended that there was numbermaterial whatsoever before the State Government to form requisite opinion under Section 52 1 of the Act that the land was required for the purpose of improvement or for any other purpose under the Act. According to him numberscheme was prepared by the State Government and it was number disclosed at any stage of the proceedings that the land was being acquired for undertaking improvements under the Act. We see numberforce in the companytention of the learned companynsel. The numberice under Section 52 1 of the Act specifically declares that the land is needed for the purposes of development plans and companystruction of residential, companymercial and administrative buildings. The Division Bench of the High Court examined the original record and observed as under The learned Advocate General also produced the relevant record companytaining the numbere of the Secretary, Town Planning Department signed by the Minister, Town Planning and the Chief Minister. It is only after such a decision of the State Government that the numberices under Section 52 1 have been published in the Rajasthan Gazette. The High Court was, thus, satisfied that the State Government took the decision to acquire that land by fully applying its mind. In any case the expression where it appears to the State Government in Section 52 1 of the Act shows that it is number necessary for the State Government to frame a detailed scheme or development plan before exercising powers under the said provision. It is sufficient if a decision in that respect is taken and the detailed scheme is left to be worked-out at the stage of execution of the plan. We, therefore, see numberforce in the companytention of the learned companynsel. It is then argued that the award having number been made within two years from August 1, 1987, the acquisition proceedings have lapsed by operation of law. The argument is based on Section 60-A of the Act as inserted by the Rajasthan urban Improvement Amendment Act, 1987 1987 Amendment . We may numberice the relevant provisions of the 1987 Amendment Short title and companymencement. 1 This Act may be called the Rajasthan Urban Improvement Amendment Act, 1987. It shall be deemed to have companye into force on 1st August, 1987. Amendment of section 52, Rajasthan Act 35 of 1959 in section 52 of the Rajasthan Urban Improvement Act, 1959 Rajasthan Act 35 of 1959 , hereinafter referred to as the principal Act, a in sub-section 1 , for the words by publishing in the Official Gazette a numberice specifying the particular purpose for which such land is required and stating that the State Government has decided to acquire the land in pursuance of this section, the words, under and in accordance with the provisions of the Land Acquisition Act, 1894 Central Act 1 of 1894 shall be substituted b c d 3 Insertion of new section 60A in Rajasthan Act 35 of 1959. After the existing section 60, the following new section shall be inserted in Chapter VII of the principal Act, namely- 60-A. Transitory provisions for pending matters relating to acquisition of land 1 2 Where in a matter pending on the date of companymencement, a numberice under sub-section 2 of section 52 or a numberice under sub-section 1 thereof has been served or, as the case may be, published, such numberice shall be deemed to be the numberification or declaration published or made under sub-section 1 of section 4 or, as the case may be, under sub- section 1 of section 6 of the Land Acquisition Act and the declaration or award in such a matter shall be made within a period of one year or, as the case may be, two years from the date of companymencement. 4 5 6 The precise argument is that in terms of Section 60-A 3 of the A it is mandatory to make an award within a period of two years from August 1, 1987, the date of companymencement of the 1987 amendment. Admitted the award has number as yet been made and as such, according to the learned companynsel, the acquisition proceedings have become null and void. We see numberforce in the companytention of the learned companynsel. The 1987 amendment came into force during the pendency of these appeals. The High Court while allowing the appeal of the State of Rajasthan observed as under On behalf of the petitioner it is prayed that the petitioners may be allowed four weeks time for obtaining interim stay order from the Supreme Court and till then the operation of the judgment may be stayed. On this prayer Mr. N.L. Jain, Advocate General undertakes for four weeks that the judgment will number be executed and the petitioner also agrees that they will also maintain the status-quo for four weks. This Court on March 20, 1986 in SLP C Nos. 3775-76/86 passed the following order Meanwhile the undertaking given by the State recorded in the order of the High Court will companytinue. to operate. In SLP C Nos. 3740/86 and 5366/86 this companyrt on April 29, 1986 directed status quo as to possession. It is thus obvious that the proceedings in pursuance to the impugned judgment of the High Court remained stayed throughout under the interim orders of this Court. Section 52 of the Act as amended by the 1987 Amendment specifically provides that the acquisition under the Act has to be made in accordance with the provisions of the Land Acquisition Act, 1894 1894 Act . Section 11-A of the 1894 Act as amended in 1984 is as under 11-A. Period within which an award shall be made The Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if numberaward is made within that period, the entire proceedings for the acquisition of the land shall lapse Provided that in a case where the said declaration has been published before the companymencement of the Land Acquisitio Amendment Act, 1984, the award shall be made within a period of two years from such companymencement. Explanation In companyputing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded. Explanation to Section 11-A quoted above is a companyplete answer to the argument raised by the learned companynsel for the appellants. Even otherwise it is well established principle of judicial procedure that where any proceedings are stayed by an order of a companyrt or by an injunction issued by any companyrt, that period should be excluded in companyputing any period of limitation laid down by law. This principal is numbermally followed unless the companytext of the statute provides otherwise. Mr. S.K. Jain, learned companynsel appearing for one of the appellants has companytended that the public purpose has number been specifically mentioned in the numberices issued by the State Government under sub-section 1 of Section 52 of the Act. He relies on the following observations of this Court in Madhya Pradesh Housing Board v. Mohd Shaft and Ors., 1992 2 SCC 168 Apart from the defect in the impugned numberification, as numbericed above, we find that even the public purpose, which has been mentioned in the schedule to the numberification as residential is hopelessly vague and companyveys numberidea about the purpose of acquisition rendering the numberification as invalid in law. There is numberindication as to what type of residential accommodation was proposed or Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if numberaward is made within that period, the entire proceedings for the acquisition of the land shall lapse Provided that in a case where the said declaration has been published before the companymencement of the Land Acquisition Amendment Act, 1984, the award shall be made within a period of two years from such companymencement. Explanation In companyputing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded. Explanation to Section 11-A quoted above is a companyplete answer to the argument raised by the learned companynsel for the appellants. Even otherwise it is well established principle of judicial procedure that where any proceedings are stayed by an order of a companyrt or by an injunction issued by any companyrt, that period should be excluded in companyputing any period of limitation laid down by law. This principal is numbermally followed unless the companytext of the statute provides otherwise. Mr. S.K. Jain, learned companynsel appearing for one of the appellants has companytended that the public purpose has number been specifically mentioned in the numberices issued by the State Government under sub-section 1 of Section 52 of the Act. He relies on the following observations of this Court in Madhya Pradesh Housing Board v. Mohd. Shaft and Ors., 1992 2 SCC 168 Apart from the defect in the impugned numberification, as numbericed above, we find that even the public purpose, which has been mentioned in the schedule to the numberification as residential is hopelessly vague and companyveys numberidea about the purpose of acquisition rendering the numberification as invalid in law. There is numberindication as to what type of residential accommodation was proposed or for whom or any other details. The State cannot acquire. the land of a citizen for building some residence for another, unless the same is in public interest or for the benefit of the Public or an identifiable section thereof In the absence of the details about the alleged public purpose for which the land was sought to be acquired, numberone companyld companyprehend as to why the land was being acquired and therefore was prevented from taking any further steps in the matter, The public purpose mentioned in the numberification in Mohd. Shafis case as residential was hopelessly vague as observed by this Court. But the numberification in the present case specifically provides that the land was being acquired for the purpose of development plan and companystruction of residential, companymercial and administrative buildings. Apart from that in Mohd. Shafis case the total land acquired was 2.29 hectares whereas in the present case much larger area is being acquired. The Division Bench of the High Court examined this question in the light of the observations of this Court in Aflatoon Ors. v. Lt. Governor of Delhi Ors., 1975 1 SCR 802 and rejected the argument on the following reasoning It is true that these are all cases under the Land Acquisition Act and public purpose is required to be specified in the numberification, but a companytention has been advanced that the public purpose should be specified with particularity and the specification should number be vague. Such a companytention was repelled. In Section 52 1 , numberdoubt the requirement is that the numberice should specify the particular purpose but having regard to the area of the land sought to be acquired, it was number possible to specify with precision, what land is required for which particular purpose. The total land acquired from village Bhojpura and Bhawani Shankerpura i.e. Rambagh area is 0322 Bighas 8 Biswas and the total area acquired from village Hathirohi, the residency area is 65 Bighas 16 Biswas. In view of the acquisition of the large areas, the numberices fulfilled the requisite companydition of specification of particular purpose and in our opinion, it was sufficient to state in the numberices that the lands are requited for ad- ministrative, companymercial and residential buildings. We see numberinfirmity in the above quoted reasoning of the High Court. Mr Jain then companytended that the land subject-matter of acquisition includes a polo ground which is used for one of the major sports peculiar to Rajasthan. According to him the polo ground is serving a public purpose which is much more useful and important than the one for which the land is being acquired. We cannot go into the companyparative utility of the public purposes. Once we are satisfied that the acquisition is for a public purpose, numberfault can be found with the proceedings on the ground that the land is already being used for some beneficial purpose. The Division Bench of the High Court has, after discussing the material on the record in detail found as a fact that ample opportunity of hearing was given to Bhawani Singh by the Officer-on-Special Duty who heard the objections. The High Court further found that the objections filed by the Samiti were fully companysidered by the said officer. We find numberinfirmity in the findings of the High Court and agree with the same. The appeals are, therefore, dismissed. We, however, leave.the parties to bear their own companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1718 of 1984. From the Order dated 17.11.83 of the Customs Excise and Gold Control Appellate Tribunal, New Delhi in Appeal No. ED SB T 338/78-D Order No. 698/83-D . K. Ganguli, B. Sen, A.K. Chitale, B.R.L. Iyengar J. Ramamurti, Mrs. Radha Rangaswami, P. Parmeswaran, C.V. Subba Rao, C. Ramesh, Virender Kaushal, Praveen Kumar, Vivek Gambhir, S.K. Gambhir, P.H. Parekh, B.N. Agarwal, A.V. Phadnis, Kh. Nobin Singh, M. Veerappa, Ashok Sagar, Ravinder Narain, D.N. Misra For JBD Co., E.C. Vidyasagar for L.R. Singh, R. Vaigai and R.K. Maheshwari for the appearing parties. The Judgment of the Court was delivered by P. JEEVAN REDDY, J. With a view to induce the Sugar Factories in the companyntry to produce more and also to companymence their operations early in the year, the Government of India have been issuing numberifications, from time to time, providing for rebate in the Excise Duty in certain circumstances. These numberifications were issued by the Central Government in exercise of the power companyferred by Sub-Rule 1 of Rule 8 of the Central Excise Rules, 1944. We are companycerned in these appeals with four such numberifications namely 1 the Notification dated 28.9.72 applicable to the Sugar Year 1972-73 , 2 Notification dated 4.10.73 applicable to the Sugar Year 1973-74 , 3 Notification dated 12.10.74 applicable to the Sugar Year 1974-75 and 4 the Notification dated 30.9.76 applicable to the Sugar Year 1976-77 . Sugar year means the year companymencing on and with 1st October and ending with the 30th of September of the following year. The interpretation of these numberifications is involved in this batch of appeals. In so far as it is material, the numberification dated 28.9.72 and the numberification dated 4.10.73 are similar. So are the numberifications dated 12.10.74 and 30.9.76. It would be appropriate if we set out the numberification dated 28.9.72 in its entirety Notification No. 203172 dated 28.9.1972 In exercise of the powers companyferred by sub- rule 1 of rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts sugar, described in companyumn 2 of the Table below and failing under sub-item 1 of Item No.1 of the First Schedule to the Central Excises and Salt Act, 1944 1 of 1944 , from so much of the duty of excise leviable thereon as is specified in the companyresponding entry in companyumn 3 of the said Table. TABLE ------------------------------------------------------------ No. Description of Sugar Duty of Excise 1 2 3 ------------------------------------------------------------ Sugar produced in a factory during the Rupees period companymencing from the 1st day of forty per October, 1972 and ending with the 30th quintal day of November, 1972 which is in excess of the quantity of sugar produced during the companyresponding period in 1971. Sugar produced in a factory during the period companymencing from the 1st day of December, 1972 and ending with the 30th day of April, 1973 Rupees which is in excess of 115 of the quantity twenty of suggar produced during the period companymencing per from the 1st day of Decmber, 1971 and ending with quintal the 30th day of April, 1972. Sugar produced in a factory during the period companymencing from the 1st day of May, 1973 and Rupees ending with 30th day of June, 1973 which is in twenty excess of the quantity of sugar produced per during the companyresponding period in 1972. quintal Sugar produced in factory during the period companymencing from the 1st day of July 1973 and ending with the 30th day of September, 1973 Rupees which is in excess of the quantity of sugar twenty produced during the companyresponding period in 1972. per quintal ----------------------------------------------------------- Provided that the exemption under this numberification shall number be admissible to a factory a which did number work during the base period, or b which had only a trial run in the base period, or c which companymences production for the first time on or after the 1st day of October, 1972 Provided further that in companyputing the production of sugar during the periods mentioned in companyumn 2 of the said Table, a the data, as furnished in Form R.G. 1 prescribed in Appendix I to the Central Excise Rules, 1944, or in such other record as the Collector may prescribed under rule 53 or rule 173G of the said rules, shall be adopted b any sugar obtained from reprocessing of sugarhouse products left over in process at that end of the base period or earlier shall b taken into account and c any sugar obtained by refining gur or Khandasari sugar, or any sugar obtained by reprocessing of defective or damaged sugar or brown sugar, if the same has already been included in the quantity of sugar produced, shall number be taken into account. Explanation I- A factory shall be deemed to have had a trial run during the base period only if, on first going into production, the period during which actual crushing was done during the base period was less than 40 per cent of the average duration of the-season in the State in which the factory is situated. Explanation 11 In this numberification, the expression, base period, means the period companymencing from the 1st day of October, 1971 and ending with the 30th day of September, 1972. Though the Sugar Year extends over a period of twelve months companymencing from 1st of October, the period companymencing with 1st December and ending with 30th April is said to be the peak production period. Most of the sugar factories were companymencing their operations only in the month of December. Either with a view to induce these sugar factories to produce more or with a view to induce them to companymence their operation early in the sugar year, the rebate provided for producing sugar in the months of October and November in excess of the companyresponding period in the previous sugar year was kept relatively high. The scheme of the numberification dated 28.9.72 appears to be this If during the months of October and November 1972 in the Sugar Year 1972-73 , a factory produced sugar in excess of the quantity of sugar produced by it during the months of October- November 1971, such factory was granted rebate in the Excise Duty at the rate of rupees forty per quintal in so far as the excess production is companycerned. Rebate for the period 1st December 1972 to 30th April, 1973 was available at the rate of rupees twenty per quintal provided the production of sugar during the said period was in excess of 115 of the quantity of sugar produced by the said factory during the companyresponding period in the previous Sugar Year, in so far as the excess production is companycerned. For the months of May and June 1973 rebate at the rate of rupees twenty per quintal was available provided the factory produced more sugar than it produced during the companyresponding months in the previous Sugar Year. The said rebate was available again only with respect to the excess production. For the period companymencing from 1st July, 1973 and ending with 30th of September, 1973, rebate was available at the rate of rupees twenty per quintal provided the factory produced sugar in excess of the quantity produced during the companyresponding period in the previous Sugar Year. This rebate too was companyfined to the excess production. However, the benefit of the rebate mentioned in any of the clauses aforesaid was number available to a factory which inter alia did number work during the base period. The expression base period was defined in Explanation 11. It meant the period companymencing from the 1st day of october 1971 and ending with the 30th day of September, 1972 Previous Sugar Year . The sugar factories companycerned with the sugar year 1972-73 did number produce any sugar in one or the other of the four blocks mentioned in the table companytained in the Notification in the base year previous sugar year . During the current sugar year, however, they produced certain quantity of sugar during that block-period. To be more precise, take factory A. It produced 1000 quintals of sugar in the months of October-November, 1972 Block-period 1 but had number produced any sugar whatsoever in the companyresponding period October-November, 1971 in the base year. The question arose whether in such a situation, Factory A was entitled to the benefit of rebate provided in Clause 1 of the Table companytained in the aforesaid numberification with respect to the said 1,000 quintals ? The companytention of the factory was that it was so entitled, whereas according to the Revenue, it was number. It is brought to our numberice that even before the companytroversy actually arose between the parties, the Committee of the Sugar Mill Owners Association addressed a letter to the Ministry of Finance, Government of India seeking a clarification as to the meaning and purport of the aforesaid numberification. The letter written by the Committee read as follows I am to refer to the Notification No. G.S.R. dated 28th September, 1972, issued by the Union Ministry of Finance Department of Revenue Insurance , New Delhi, on the above subject companyy enclosed for ready reference . In this companynection, the Government had issued a similar Notification on 13th Oct. 1971, on the same subject. On this Notification, in response to an enquiry made by the Committee of the Association, the Board had clarified as per their letter No. F. No.14/33-71/CX. 1 dated 26th November, 1971, that a factory which had worked during the base period i.e. during the period companymencing from 1st day of October, 1970 and ending with 30th day of September, 1971, though it had number worked during the period from 1st October, 1970 to 30th November, 1970, and the production during this period was nil, would be entitled to the excise rebate at the numberified rate on its entire production achieved during the month of October and November, 1971. As th Notification issued this year is also on similar lines, the Committee presume that the clarification given by the Board last year will apply to the Notification issued this year also, i.e., where a factory has worked in the base period 1st October, 1971 to 30th September, 1972 it will be entitled to the full rebate on its entire production during the various periods mentioned in the Notification, although during the companyresponding periods in the last season, the production may be nil. The Committee shall be glad if you kindly companyfirm whether their above presumption is companyrect. Thanking you for a line in reply. In this letter dated 1st November, 1972 the Ministry of Finance intimated the Committee that the presumption made by the Committee is companyfirmed in respect of the established factories only. Later on, however, the Government of India revised their opinion which has led to the present companytroversy. It is brought to our numberice that the sugar factories are governed by and follow the procedure prescribed by Rule 173- G of the Central Excise Rules, which rule occurs in Chapter VII-A Removal of Excisable Goods on Determination of Duty by producers, Manufacturers or Private WareHouse Licencees. Rule 173 G requires every assessee to keep an accountcurrent with the Collector separately for each excisable goods, in the suc form and manner, as the Collector may require. The rule requires the assessee to make credit periodically in such account-current, by cash payment into the treasury, so as to keep the balance in such account-cumrent sufrent to companyer the duties due on the goods intended to be removed at any time. Every such assessee has to pay the duty determined for each companysignment by debit to such account current before removal of goods. The Rules further require every assessee to furnish a monthly return in the prescribed form, on the basis of which, assessment is companypleted by the appropriate officer. Coming back to the facts of these appeals, the claim for rebate made by these factories was allowed in the first instance but later proceedings were initiated to recover back, or re-adjust, as the case may be, the benefit already allowed. This was the phenomenon all over the companyntry. These disputes were carried to High Courts. The main dispute was the same as indicated hereinabove. The factory has produced a certain quantity of sugar in block-period i or, for, that matter, any other block-period in the sugar year 1972-73, but had number produced any sugar whatsoever in the companyresponding period in the base year previous sugar year but has produced some quantity of sugar during the base year as such whether such factory is entitled to the rebate prescribed in clause i or such other clause, as may be applicable of the said Notification ? Since the Notifications for 1972-73 and 1973-74 are more or less similar, disputes raised before High Courts pertained to both these years. Indeed, the said issue is companymon to the other two numberifications companycerned herein as well, with some difference, as we shall indicate at the proper stage . It appears that almost all the High Courts except Karnataka have held in favour of the factories. In Patna High Court, there appears to be a companyflict of opinion. Karnataka High Court has, however, held in favour of the Union of India. The first of the reported decisions is of the Andhra Pradesh High Court Chinnappa Reddy, J., as he then was in Etikoppaka Co- operative Agricultural Society v. Union of Inida, 1982 E.L.T. 19. The reasoning in the said Judgment has been followed by most of the other High Courts. See 1986 26 E.L.T. 904 Bombay 1982 59 E.L.T. 409 AHahabad 1982 E.L.T. 19 Punjab Haryana 1986 24 E.L.T. 259 Madras and 1987 E.L.T. 260 Orissa . Shri Ganguli, learned companynsel for the Union of India companytends as follows Language of the Notifications pertaining to the year 1972-73 and 1973-74 is quite clear and unambiguous. The benefit of rebate is available only where the sugar produced in a factory during the period companymencing from the 1st day of October, 1972 and ending with the 30th day of November, 1972 which is in excess of the quantity of sugar produced during the companyresponding period in 1971 to take clause i of the Notification relating to 1972-73. The clause companytemplates and is based on the premise that sugar is produced during October- November, 1972 as well as October-November, 1971. If numbersugar was produced during the companyresponding period in the previous sugar year October-November, 1971 , the very clause is inapplicable. The companytention of the factory-owners, which has numberdoubt been accepted by a majority of High Court, does voilence to the plain language of the clause. The interpretation placed by the factoryowners leads to certain absurd companysequences. Learned companynsel gave more than one illustration to emphasise his submission. Take a. case where a factory has produced one thousand quintals of sugars in October-November 1971 and has also produced one thousand quintals in October-November 1972. In such a situation the factory would number get any rebate in terms of the numberification dated 28.9.72, whereas another factory which may number have produced any sugar whatsoever in October- November 1971 but has produced one thousand quintals of sugar in October-November 1972, gets the rebate at the rate of rupees forty per quintal. This would really amount to, says the companynsel, punishing the first factory more efficient factory for producing the sugar in the previous year And to rewarding the second one the indolent factory which did number produce any sugar during OctoberNovember, 1971. Another illustration given by the learned companynsel is this a factory had produced five thousand quintals of sugar during the period 1st December, 1971 to 30th April, 1972 it produces the very some quantity again during the period 1st December 1972 to 30th April, 1973 such a factory would number be entitled to any rebate under clause 2 of the said numberification but another factory which had produced, say, just 1000 quintals during the period December 1, 1971 to April 30, 1972 but produces five thousand quintals during the period December 1, 1972 to April 30, 1973 would get the benefit of rebate on 4000 quintals. This again amounts to, says the companynsel, rewarding the inefficient and indolent and punishing the efficient. The learned companynsel seeks to reinforce his argument by referring to clause 2 . It relates to the period 1st December 1972 to 30th April 1973. Rebate in the sugar produced during this period is available only if it is in excess of 115 per cent of the quantity of sugar produced during the period December 1, 1971 to April 30, 1972. If the production is nil during the companyresponding period in the previous sugar year, asks the companynsel, how is one to work out 115 of it. What is 115 of zero ? asks he. For all these reasons companynsel says, nil production cannot be equated to the quantity of sugar produced in clause 1 . Counsel also says that Clause 1 of the first Proviso in the said numberification should be harmonised with the several clauses mentioned in the Table and that numberinterpretation should be adopted which renders any part of the said numberification superfluous. We find ourselves unable to agree with the learned companynsel for the Union of India. While we agree that the several clauses in the Notification must be read together, harmonised and reasonably understood, we cannot also ignore the underlying object and purpose of the numberification. We Also agree that an interpretation which leads to absurd companysequences should be avoided. Even so, we are afraid, we cannot agree with the learned companynsel. The object behind the numberification was evidently number only to induce the factories to produce more sugar but also to induce them to start their production early in the sugar year. The object appears to be also to induce the factories to keep on producing the sugar all the year-round, which they may perhaps number have done otherwise. Running the factories during the off-season we are told, off-season means October-November period and then again the period from May- June to September , may have its own problems which may increase the companyt of production. Be that as it may, the main issue is whether the words the quantity of sugar produced during the companyresponding period do number take in the case of a factory which has number produced any sugar whatsoever during the relevant companyresponding period ? On a companysideration of the rival points of view, we are of the opinion that it does take in. Holding otherwise would have this absurd companysequence a factory which has produced, say, just one quintal of sugar during the relevant companyresponding period and has produced 1000 quintals during October- November, 1972 would qualify for the rebate on 999 quin- tals while another factory which has number produced any sugar nil production but has produced 1000 quintals during October- November, 1972, would number qualify. How does this interpretation advance the purpose of the numberification, is difficult to appreciate. Coming to the second illustration given by the learned companynsel, we must say that the idea behind the said numberification is to induce the manufacturers to produce more in the current sugar year than what they have produced in the previous sugar year or during the previous companyresponding period in the previous sugar year, as the case may be. If this is the object there is numberhing absurd in saying that a factory which has produced five thousand tons during December 1, 1971 to April 30, 1972 and produces the. very same quantity during the period December 1, 1972 to April 30, 1973, does number qualify for rebate under clause 2 . There is numberreason or occasion for granting him any rebate. But where a factory has number produced any sugar or has produced a particular quantity of sugar during the said period in the previous sugar year but produces a larger quantity during the said period in the current sugar year, it must be rewarded. It may be remembered that numbermanufacturer produces sugar merely for the sake of rebate. Rebate is an inducement, an additional attraction. It is number as if without rebate provided by these numberifications, numberone would have produced sugar. We are also unable to see any difficulty in operating clause 2 of the said numberification. There is numberarithmetical difficulty in working out 115 of zero it is zero. What applies to clause 1 applies equally to clauses 2 , 3 and 4 . Our understanding is reinforced and supported by clause a of the first proviso. It says that the benefit of the said rebate would number be available to a factory which did number work during the base period. Why does it say so? What is its meaning and implication? It is only that the factory need number necessarily have worked during each of the companyresponding periods in the base year it is enough if it has worked in the base year. We may point out that a majority of the High Courts in the companyntry have adopted the very same interpretation as has been placed by us. It is then argued by the learned companynsel for the appellant that exemption numberifications should be strictly companycluded. There is numberquarrel with the proposition but there is another equally valid principle that such numberifications should be given their due effect, keeping in view the purpose underlying. We must reiterate that numberfactory owner would keep his factory idle during a particular period only with a view to produce sugar during the same period in the next sugar year and earn rebate in the next year. More particularly, it can number reasonably be expected that a factory-owner would deliberately keep his factory idle during the peak production period December to April only with a view to produce sugar during that period next year and earn rebate in such next year. It would be unrealistic to say so. Actually these numberifications were being issued every year companyfined to that year. They were being issued just on the eve of the sugar year or a few days after the companymencement of the sugar year and there were variations in the relevant clauses from year to year. Construed realistically, we see numberroom for any absurdity resulting from our interpretation The case of October-November appears to be rather an exception. Normally, it appears, numberfactory-owner companymenced the production of sugar in these months because of several unfavorable factors. Indeed, these unfavorable factors appear to be present to a large extent even during the months June to September. These numberifications were evidently meant to companypensate the factory-owners for producing during these months as well. As stated already, one must proceed on the assumption that every industrialist and businessman would, ordinarily, like to produce as much more as possible, since, numbermally speaking, more production means more profits. For the above reasons, we are of the opinion that the interpretation placed upon the said numberifications by the majority of the High Courts is the companyrect one. We do number agree with the view taken by the Karnataka High Court in its Judgment under appeal in Civil Appeal Nos. 3831-32 of 1988. For the same reason, we do number also agree with the view taken by the Patna High Court in Civil Writ Jurisdiction Case No. 865 of 1966. Now companying to the Notifications for the years 1974-75 and 1976-77, the companycept of base year is number to be found here otherwise they are similar to those relating to 1972-73 and 1973-74. In the numberification dated 12.10.74 relating to the sugar year 1974-75 the sugar year is divided into two blocks periods. The first block companyprises October and November 1974 whereas the second block takes in December 1974 to September 1975. Here too, the question is identical to that arising in the years 1972-73 and 1973-74. The answer too will naturally be the same. In view of the aforesaid companyclusion, it is number necessary for us to go into the other questions raised by the factory- owners except the following There is a minor companytroversy with respect to the working of Clause 2 in Notification No. 146/74 dated 12.10.74 relating to the sugar year 1974-75. Clause 2 the table companytained in the numberification reads as follows TABLE ------------------------------------------------------------ No. Description of Sugar Duty of excise ------------------------------------------------------------ 1 2 Free Sale Levy of Sugar Sugar 3 4 ------------------------------------------------------------ Sugar produced in a factory during the period companymencing on the 1st day of December, 1974, and ending with the 30th day of September, 1975 which is in excess of the average production of the companyresponding period of the preceding five sugar years, that is, a on excess production upto Rs. 20/- per Rs. 5/- per 7.5 quintal quintal b on excess production on the Rs. 40/-per Rs. 10/- per next 10 quintal quintal c on excess production on the Rs.501-per Rs. 14/- per next 10 quintal quintal d on excess production on the Rs.60/-per Rs. 18/- per next 10 quintal quintal e on excess production beyond Rs. 82/-per Rs. 22/- per 37.5 quintal quintal Mr. Ganguli, learned companynsel for the Union of India says that some of the Courts have applied the percentages mentioned in sub-clauses a to e to the excess production and number to the average production of the preceding five sugar years. We may take an illustration to explain what the learned companynsel says. Take a case. where the average production of a factory during the companyresponding period December 1 to September 30 of the preceding five sugar years is 1000 quintals. That factory produces 2,500 quintals during the period December 1, 1974 to September 30, 1975. In such a case, the ascending percentages mentioned in sub-clauses a to e of clause 2 have to be applied for working out the rebate. According to us, it must be done in the following manner, keeping in mind that the basis for these percentages in the average production of the previous five years and number the excess production. Out of 2,500 quintals produced during the said period in the current sugar year December 1, 1974 to September 30, 1975 , the average of the five previous sugar years i.e., 1000 quintals should be deducted first, which means the excess production during the current year is 1500 quintals. 7.5 of 1000 quintals is 75 quintals. On this quantity of 75 quintals, the rate of rebate as per sub- clause a will be Rs. 20 per quintal in the case of free sale sugar and Rs. 5 per quintal in the case of levy sugar. Next 10 of excess production means 100 quintals which would be eligible for rebate under sub-clause b at the rate of Rs. 40 per quintal in the case of free sale sugar and Rs. 10 per quintal in the case of levy sugar. The next 100 quintals would be eligible for rebate under sub-clause c at the rate of Rs.50 per quintal in the case of free sale sugar and Rs. 14 per quintal in the case of levy sugar. Then again the next 100 quintals would be eligible for rebate under sub-clause d at the rate of Rs. 60 per quintal in the case of free sale sugar and Rs. 18 per quintal in the case of levy sugar. The balance of 1125 quintals would qualify for rebate under sub-clause e at the rate of Rs. 82 per quintal in the case of free sale sugar and Rs. 22 per quintal in the case of levy sugar. This is the interpretation and understanding companytended for by Shri Ganguli and we must say that numbere of the companynsel for the factory-owners disputed the same. It is accordingly directed that the above method shall be followed in working out clause 2 of the numberification dated 12.10.74. Accordingly all the civil appeals except Civil Appeal Nos. 3831- 32 of 1988, fail and are dismissed. Civil Appeals No. 3831-32 of 1988 are allowed. The authorities will take action in accordance with this judgment. There will be numberorder as to companyts. P.R. CA Nos.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 3522 NT of 1979. From the Order dated 24.1.1979 of the Punjab and Haryana High Court in Income Tax Case No.50 of 1978. WITH A. NOS. 2456 NT /78, 5987-88 NT /90,1368 NT /82,1549- 57 NT /93 1558 NT /93. Vishwanatha Iyer, C. Ramesh, T.V. Ratnam and Ayyam Perumal for P. Parmeswaran for the Appellants. S. Aggarwal for B.V. Desai for the Respondents. The Judgment of the Court was delivered by P. JEEVAN REDDY, J. Civil Appeal No.2456 NT of 1978. This appeal is preferred against the judgment and order of the Punjab and Haryana High Court dismissing an application filed by the Revenue under Section 256 2 of the Income Tax Act. The question which the Revenue wanted to raise reads thus Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the receipt of Rs.1,38,577 realised 1 per bilty per customer through the bills and credited to a separate account called DHARMADAwas number assessable to tax as revenue receipt? The case of the Revenue briefly stated is to the following effect the assessee is a private Ltd. companypany engaged in the business of transport. During the accounting period ending January 31, 1970 relevant to the assessment year 1970-71, the respondent companylected an amount of Rs.1,38,577 on account of DHARMADA. The Income Tax Officer called upon the respondent- assessee to explain why the said amount should number be treated as its trading receipt. The respondents case was that according to the custom prevailing in the transport business, he two companylected Re.1 per bilty for spending on charitable purposes. He stated that out of this amount companylected, a major portion was spent on charity and that the balance of Rs.8,871 was carried over in the separate account kept for DHARMADA. His case was that this amount was never credited to his income account and it always companystituted a distinct account. This explana- tion was number accepted by the Income Tax Officer who included the said amount of Rs.1,38,577 in the business income of the respondent. On appeal, the Appellate Assistant Commissioner accepted the respondents companytention and deleted the said addition. The Tribunal companyfirmed the same. However, says the companynsel, the true state of affairs is disclosed from the assessees own letter extracted in the assessment order. When called upon to explain the companylection of the said amount and its purpose, the assessee submitted a reply in writing stating as under It is customary in the Transport business to companylect charge DHARMADA, at the rate of Re.1 per Bilty. Not only this but also all the Transport Companies, charge companylect this customary Dharmada. This amount is meant for distribution to the poor relatives of labourers working in the business premises and also to give at the time of marriages of girls in their families. This is just to get full companyperation from them. The companypany has numberhing to do with this companylection as it has to distribute the same. It is thus evident, says the companynsel for the Revenue, that the amount though companylected in the name of Dharmada was neither meant for charity number was it ever spent on charitable purposes. Distribution of the said money among the poor relatives of the labourers working in the business premises of the assessee and also to give at the time of marriages of girls in their families cannot be called a charitable purpose. Indeed, according to the respondent, himself these amounts were distributed among them with a view to get full companyperation from them. According to learned companynsel, the assessee is really using the money companylected in the name of Dharmada for his own business purposes. In the above circumstances, say the companynsel, the High Court ought to have directed the Tribunal to state the aforesaid question under Sec.256 2 of the Act, So far as inclusion of amounts companylected as Dharmada which are kept in a separate account and are utilised for charitable purposes is companycerned, there can be numberdispute that they are number liable to be included in the income of the assessee vide CL T. v. Bijli Cotton Mills P Ltd., 116 T.R. 60 but the Revenues case herein is that though companylected in the name of Dharmada, these amounts were neither meant for any charitable purpose number were they spent on charitable purposes. In support of the same they rely upon the aforesaid written reply of the respondent-assessee itself. In our opinion this was a proper case where the High Court ought to have directed the Tribunal to state the said question under Section 256 2 of the Act. We do number think it necessary to say more than this on this occasion, lest it may prejudice the case of the parties at the hearing of the reference. The appeal is accordingly allowed, the judgment and order of the High Court is set aside and the application filed by Revenue under Section 256 2 is allowed. The Tribunal shall state the aforesaid question for the opinion of the High Court under Section 256 2 of the Act. No order as to companyts. CIVIL APPEAL NO.3522 NT 179, 1368 NT 182, 5987-88 NT 190 AND S.L.P. C No.8353185. These appeals and Special Leave Petition pertain to the very same assessee who is the respondent in Civil Appeal No.2456 NT of 1978. For the reasons given hereinabove, leave is granted in S.L.P. C No.8353 of 1985 and all these appeals are allowed in the same terms as the appeal No.2456 NT of 1976. L.P. C NOS-3257-3265 OF 1979. The facts in these Special Leave Petitions are identical to the facts in Civil Appeal No.2456 NT of 1978, though the assessee is different. The assessee too is engaged in transport business. No separate argument is addressed in these matters. Leave granted in all these Special Leave Petitions. For the reasons stated in the judgment in Civil Appeal No.2456 NT of 1978, these appeals too are allowed and the Tribunal is directed to state the following question for the opinion of the High Court under Section 256 2 of the Act. Whether on the facts and in the circumstances of the case, the Appellate Tribunal is right in Law in holding the of Rs.5506, Rs.26,039, Rs33,385, Rs.49,634 and Rs.57,902 charged in bilties in the assessment years 1967-68 to 1971-72 are number assessable to tax as revenue receipts.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 277 of 1993. From the Judgment and Order dated 14.10.1991 of the Bombay High Court in Crl. Misc. Application No. 2260/91 in Crl. Revision Application No. 123 of 1991. Altaf Ahmed, Addl. Solicitor General, B.R. Handa, Mrs. Manjula Rao, S.M. Jadhav, A.S. Bhasme and A.M. Khanwilkar for the Appellant. Dr. B. Subha Rao Respondent-in-person. The Judgment of the Court was delivered by M. SAHAI, J. The short question that arises for companysideration in this appeal is if the High Court was justified in allowing the application filed by the accused for declaring that the charges framed by the Additional Sessions Judge by order dated 24/27th July, 1990 were null and void as they were obtained by fraud, practised by the State. Merits or otherwise of the application, alleging fraud against the State, apart, what has left us companypletely surprised is number so much the entertaining of the application filed by the accused, for declaration that the charges framed against him were nullity having been procured by fraud as the procedure adopted by the learned Single Judge of granting the prayer merely for failure of the State to file any reply by way of companynter-affidavit than by recording any finding that the State was guilty of procuring the order framing the charges by fraud. One of the objections raised by the State was that since the High Court by its order passed on 25/26th March 1991 in Criminal Writ Petition No. 966 of 1990 had specifically held that the question of framing charge had become final, therefore, it companyld number be re-opened, cannot be said to be without substance as the Division Bench had clearly held that it was number open to go behind the order passed by the learned Single Judge on 3rd/4th April 1990 directing that the charges be framed against the accused number only under Section 3 but under Section 5 as well. Nor can any exception be taken to the finding of the Bench that the said order companyld number be said to have been passed without jurisdiction in as much as the learned Single Judge had jurisdiction to decide the revision application preferred under the provisions of the Code. Even the question of fraud raised by the accused was negatived by the Division Bench and it was held that it was number capable of being gone into as it did number form part of the substratum of the case of the prosecution and was number germane to the question of deciding as to whether he was entitled to- be discharged or number. However, it is number necessary to rest the decision on this ground as the learned Single Judge having allowed the application as being vitiated by fraud it appears necessary to examine if the pleading on fraud in the application filed by the accused was sufficient in law to empower the High Court to take companynizance of it and even if it was, did the accuse succeed in proving it as even if the State did number file any companynter-affidavit the application companyld number be allowed unless it was found as a fact that the State by its acts or omissions acted-,deceitfully or it misled the companyrt. Fraud is false representation by one who is aware that it was untrue with an intention to mislead the other who may act upon. it to his prejudice and to the advantage of the representor. It is defined in Oxford Dictionary as, using of false representations to obtain an unjust advantage or to injure the rights or interests of another. In Webster it is defined as, deception in order to gain by anothers loss craft trickery-, guile any artifice or deception practiced to cheat, deceive, or circumvent another to his injury. It has been defined statutorily in Section 17 of the Contract Act as including certain acts companymitted with companynivance or with intent to deceive another. In Administrative Law it has been extended to failure to disclose all relevant and material facts which one has a positive duty to disclose. It is thus understood as deliberate act or omission to mislead other to gain undue advantage. It companysists of some deceitful practice of wilful device, resorted to with intent to deprive another of his right or in some manner to do him an injury Blacks Law Dictionary . Effect of fraud on any proceeding, or transaction is that it becomes nullity. Even the most solemn proceedings stand vitiated if they are actuated by fraud. Such being the nature and companysequence of it the law requires number only strict pleading of it but strict proof as well. Did the averments in the application made out case of fraud ? Were the statements of fact capable of giving rise to an inference in law that the State was guilty of misleading the companyrt ? From the charge-sheet it is clear that it companyplied with the requirements of law and mentions number only the offence and the section but the particulars as to time, place and person. Whether prosecution was possessed of sufficient evidence to prove each of the charges is different matter, but they were framed on basis of documents seized from possession of the accused at the airport, search of his residence, on the next day, interrogations of the accused and examination of prosecution witnesses. In the companynected appeal No. 276 of 1993 Arising out of S.L.P. Crl. No. 986 of 1992 directed against the discharge of the accused for failure to obtain sanction a very brief summary has been given of various attempts made by the accused to get an order of discharge, on merits, without success. It is number necessary to recount all that here. Ul- timately when the accused was discharged for failure of the State to obtain sanction under Section 197 of the Criminal Procedure Code in brief the Code and the State challenged the companyrectness of the order by way of revision the accused filed the application for the declaration that the charge-sheet be declared null and void. In paragraph 3 of the application it was stated that the charges were vitiated by fraud as the Punchnama dated 30th May 1988 was fabricated as it did number companytain his signature and it was ante-dated. It was further averred that three months even the companyies of the remand application filed by the police were denied to the applicant and the orders thereon were number supplied to him. It was also claimed that the companyplaint was in companytradiction with the statement of witnesses. May or may number be so but that companyld be relevant when the merits were gone into. It certainly, companyld number be taken as a ground for claiming that the framing of charge was fraudulent, especially, when these aspects had been thrashed out once before the learned Single Judge who by his order dated 3rd/4th April 1990 held that the charges against the accused were made out number only under Section 3 but under Section 5 of the Act. In the same paragraph the accused extracted certain observations made by a learned Single Judge, in one of the orders and claimed that they furnished guidelines to distinguish between offences under Sections 3 and 5 of the S. Act. According to him if honest and fair answer to the question, if any charge was made out, Was given by the State it would have exonerated the applicant but the State companymitted fraud by keeping the Trial Judge in the dark of real facts and induced him to entertain erroneous opinion and pass order on 24th July framing charges against him. In paragraphs 4 to 8 various sentences from one or the other judgment rendered for or against the accused by different companyrts at one or the other stage were extracted and it was claimed that the State either knowingly did number place companyrect facts to substantiate those observations or deliberately companycealed the truth and made fraudulent submissions inducing the Trial Judge thereby to frame the charges. Emphasis was laid on the submissions advanced by the State and it was stated that it was result of fraudulent submissions that the Trial companyrt was induced to frame charges against the accused. No foundation giving rise to fraud was laid. Facts which companyld be fished out from paragraphs averring fraudulent submissions companyld number in our opinion be said to be relevant for alleging fraud. For instance in paragraph 4 it was stated, the Ld. Addl. Session Judge was deceived by the aforesaid fraudulent and false submission of the Respondent in February 1989 during the judicial proceedings and the Ld. Addl. Session Judge was induced to believe that the applicant was also found and caught carrying books on 30-5-1988 at the Sahar Airport Bombay which books, as alleged by the Respondent, companyld number have companye into possession of the Applicant even in the ordinary companyrse, when the applicant was holding the office of the Captain of Navy. The respondent knew very well that in the record of the Sessions Case number 1084/88 there were numberbooks as alleged by the Respondent and moreover the disputed documents were number deposited in the Sessions Court in February 1989 when the Learned Addl. Session Judge was induced to believe the fraudulent submissions of the Respondent in February 1989. The above mentioned fraudulent submissions of the Respondent were clearly meant to deceive the Session Court in February 1989 and to see that the applicant was number discharged under Section 227 Cr. P.C. Similarly in paragraph 5 it was stated, It is significant to numbere that in February 1989 the documents were number deposited in the Session Court though it was mandatory under Section 209 c Cr. P.C. to deposit the documents in the Session Court after the Case was companymitted to the Sessions on 22.9.1988 by the Ld Magistrate. Thus in actual position there were numberdocuments in February 1989 for companysideration of the Ld. Addl. Session Judge as prescribed under the provisions of Sec. 227 Cr. P.C. and the Respondent took advantage of that situation and intentionally made the aforesaid fraudulent submissions in Feb. 1989 during the judicial proceedings before the Ld. Addl. Session Judge Shri Patel and caused circumstances to induce the Ld. Session Judge Shri Patel to entertain erroneous opinions and pass orders resulting in miscarriage of justice. In paragraph 7 it was stated as under The Ld. Addl. Session Judge Shri Patel passed two orders dated 11-9-1989 and 11-10- 1989 to companypel the Respondent to deposit the documents in the Session Court and accordingly the Documents were deposited in the Session Court only on 11-10-1989 which companyclusively establishes that in February 1989 when Charges were framed the Documents were number with the Session Court and the fraudulent and false evidence advanced in February 1989 by the Respondent alone became the basis to frame Charges in February 1989. We must companyfess our inability to appreciate the worth of such averments to establish fraud. Legal submissions cannot be equated to misrepresentation. In our opinion the pleadings fell short of legal requirements to establish fraud. Various sentences extracted from different judgments between the accused and State in various proceedings companyld number give rise to an inference either in law or fact that the state was guilty of fraud. Suffice it to say that it was companyplete misapprehension under which the accused was labouring and it was indeed unfortunate that the High Court number only entertained such application but adopted a companyrse which amounted to reviewing and setting aside orders of his predecessor without sufficient material and accept the claim that all earlier judgments were, liable to be ignored under Section 44 of the Evidence Act as the proceedings were vitiated by fraud. We are companystrained to say that the learned Judge number only companymitted an error of procedure but misapplied the law. In the result, this appeal succeeds and is allowed. The order dated 14th October 1991 in Criminal Miscellaneous Application No. 2260 of 1991 is set aside and the application of the accused for declaring the order dated 24/27th February 1990 framing the charges against him as vitiated by fraud, is dismissed.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 447 of 1982. From the Judgment and Order dated 6.7.1981 of the Bombay High Court in W.P. No. 1967 of 1981. K. Mehta and Vimal Dave for the Appellant. R. Lalit, Mrs. J. Wad and Mrs. Tamali Wad for the Respondents. The Judgment of the Court was delivered by VENKATACHALA, J. In this appeal by special leave, the summary rejection by the Bombay High Court of an application filed, under Article 227 of the Constitution, for setting aside an eviction order made by the Court of Small Causes at Bombay the trial companyrt, under clause c of sub-section 1 of section 13 of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947, to be referred to as the Act and upheld by the appellate Division Bench of the same companyrt the appellate companyrt, is questioned. Sudarshan Building No. 2, Shivaji Park Road No.3, Bombay-28 is a storeyed building companyprised of a large number of flats occupied by different tenants. Flat No. 10 in the Second Floor of that building to be referred to as the premises was in occupation of the appellant-defendant eversince the year 1952 as its tenant under Kherodkar, the owner of the whole of that building. In the year 1958, when Kherodkar mortgaged with possession the said building in favour of respondents-plaintiffs, the defendant and other tenants in different flats of that building became tenants under plaintiffs usufructuary mortgages and companytinued as such tenants on payment of monthly rents to them. But, by a quit numberice dated July 3, 1967 the plaintiffs determined the monthly tenancy of the defendant respecting the premises in his occupation and sought to recover from him the possession of the premises by instituting a suit in the companyrt of Small Causes at Bombay on the very ground on which his tenancy was terminated, that is, that the defendant had been guilty of companyduct which was a nuisance or annoyance to the adjoining or neighbouring occupiers. That was a ground which entitled the landlord under clause c of sub-section 1 of section 13 of the Act, to recover possession of the premises from the tenant. That ground had been based on plaintiffs allegations of threats of murder posed by the defendant to the neighbouring occupiers abuses hurled at neighbouring occupiers by his sons whistling at neighbouring occupiers by the defendants sons spitting against the walls and in the companymon staircase area of the building by the defendants sons obstructions offered by the defendant, his wife, sons and servants to the neighbouring occupiers to reach the companymon terrace of the building by a staircase and removal by them of aerials of radios of the tenants in the other flats of the building,, which had been fixed above the companymon terrace obstructions offered to the landlords and their workers to inspect the companymon terrace unauthorised errection by the defendant in the companymon terrace area certain machinery and running it during nights causing disturbance to sleep of neighbouring occupiers and also unauthorised used by the defendant of the water in companymon over-head storage tanks in the companymon terrace area for his business purposes depriving other tenants of the numbermal use of such water. The defendant, however, resisted the claim for recovery of possession of the premises, made. in that suit filing a written statement thereto, denying the allegations of nuisance and annoyance levelled against him, his wife, sons and servants and urging that those allegations, even if established, did number companystitute the ground of nuisance or annoyance envisaged under clause c of sub-section 1 of section 13 of the Act, as a ground for recovery of possession of premises from a tenent. It was also urged therein by the defendant that the ground for recovery of possession of premises from a tenant under clause c thereof was number available to plaintiffs, for they being usufructuary mortgagees of the building were number landlord within the meaning of that expression in sub- section 1 of section 13 of the Act as would entitle them to recover possession of premises from a tenant. In so far as the-common terrace, the defendants unauthorised use of which was companyplained of by the plaintiffs, the defendant urged therein that he being a tenant of that terrace in addition to the premises, was entitled to put it for the use of his choice and prevent other tenants in the building from its companymon use. It was further urged therein that the suit having been instituted by the plaintiffs to pressurise the defendant and extract from him higher rent for the premises was vitiated by malafides. The trial companyrt which tried the suit, on an appraisal of the oral and documentary evidence adduced by the parties, recorded its findings on issues arising for its determination in that suit in favour of the plaintiffs and against the defendant. Consequently, it decreed the suit of the plaintiffs for recovery of possession of the premises from the defendant. The appellate companyrt before which the decree of the trial companyrt was appealed against by the defendant, on its re-appraisal of the evidence, affirmed the findings of the trial companyrt and dismissed the appeal. Feeling aggrieved by the decree of the trial companyrt and its affirmation by the appellate companyrt, the defendant impugned the same by filing a writ petition under Article 227 of the Constitution before the High Court of Bombay, but that writ petition was rejected by the High Court in limine. The defendant has questioned in this appeal by special leave, the companyrectness of the decree of the trial companyrt made against him for recovery of possession of the premises by the plaintiff, the decree of the appellate companyrt affirming the decree of the. trial companyrt and the order of the High Court rejecting his writ petition. In support of the appeal, three companytentions were raised before us by Shri B.K. Mehta, the learned senior companynsel for the appellant-defendant. But those companytentions were strongly refuted by Shri U.R. Lalit, the learned senior companynsel for respondents-plaintiffs. Taking into companysideration the serious nature of the companytest, we shall examine the merit in every-one of the companytentions, rather in detail. First of the said companytentions which was urged as a legal companytention by the learned companynsel for the appellant, was that an usufructuary mortgagee was number entitled to recover possession of a premises from a tenant under section 13 1 c of the Act pleading the ground that the tenant or any person residing with him in such premises was guilty of companyduct which is a nuisance or annoyance to the adjoining and neighbouring occupiers, when the expression Land-lord in section 13 of the Act cannot be said to include an usufructuary mortgagee. Provisions in the Act in so far as they become necessary for a proper appreciation of the said companytention companyld be excerpted at the outset. Section 13 1 of the Act When landlord may recover possession. Notwithstanding anything companytained in this Act a landlord shall be entitled to recover possession of any premises if the Court is satisfied - a b c that the tenant or any person residing with the tenant has been guilty of companyduct which is a nuisance or annoyance to the adjoining or neighbouring occupiers d e f g that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held or where the landlord is a trustee of public charitable trust that the premises are required for occupation for the purposes of the trust or h hh hhh No decree for eviction shall be passed on the ground specified in clause g of sub- section 1 if the Court is satisfied that, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the land-lord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it. Where the companyrt is satisfied that numberhardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the Court shall pass the decree in respect of such part only. Explanation For the purposes of clause g of subsection 1 , a b the expression landlord shall number include a rentfarmer or rent-collector or estate-manager Section 5 3 of the Act Definitions. In this Act unless there is anything repugnant to the subject or companytext, 3 landlord means any person who is for the time being, receiving, or entitled to receive, rent in respect of any premises whether on his own account or on account, or on behalf, or for the benefit of any other person or as a trustee, guardian, or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant, and includes any person number being a tenant who from time to time derives title under a landlord and further includes in respect of his sub-tenant, a tenant who has sub-let any premises and also includes in respect of a licensee deemed to be a tenant by section 15A, the licensor who has given such licence Whether the expression landlord in sub-section 1 of section 13 of the Act cannot be said to include an usufructuary mortgagee where the tenanted premises is the subject of usufructuary mortgage, is the question which requires our answer in the light of the provisions of the Act. As companyld be seen from the definition of usufructuary mortgage in clause d of section 58 of the Transfer of Property Act, 1882 the T.P. Act, an usufructuary mortgagee is a transferee of a right to possession of the mortgaged property and the right to receive the rents and profits accruing from such property. When a lessor of a leased property creates an usufructuary mortgage in respect of such property what he transfers under section 109 of the T.P. Act as a mortgagor in favour of the usufructuary mortgagee includes his right to possession of such property and the right to receive the rents and profits accruing from it. Thus section 109 of the T.P. Act entitles the usufructuary mortgagee from the lessor, as against the lessee, for all rights which the lessor had against such lessee. From this, it follows that tenanted premises, if is mortgage by the landlord by way of usufructuary mortgage, the usufructuary mortgagee thereunder would become entitled to receive the rents and profits accruing from such property in his own right and on his own account. Clause 3 of section 5 of the Act which companytains the definition of landlord, states that under the Act landlord means any person who is for the time being receiving or entitled to receive rent in respect of any premises on his own account and includes any person number being a tenant who from time to time derives title under a landlord, unless there is anything repugnant to the subject or companytext. There, companyes section 13 1 of the Act entitling landlord to recover possession of any premises from his tenant on the ground envisaged under clause c thereof, that is, the tenant or any person residing with the tenant being guilty of companyduct which is a nuisance or annoyance to the adjoining or neighbouring occupiers, and that section 13 1 companytains numberhing repugnant in its subject or companytext which would disentitle an usufructuary mortgagee, as a landlord of the tenanted premises to recover its possession from the tenant on the said ground. Further, if the legislative intendment was that the usufructuary mortgagee was number to be regarded as a landlord for recovering possession of a tenanted premises on any of the grounds envisaged under sub-section 1 of section 13 of the Act, it would number have omitted to state so, expressly, particularly when it had been so stated in clause b of the explanation to sub-section 2 of section 13 of the Act, as regards rent farmer or a rent companylector or an estate manager who would have been otherwise a landlord entitled to recover possession of a tenanted premises from the tenant under clause g of sub-section 1 of that section. Indeed, the decision of this Court in S.B. Abdul Azeez By Lrs. v. Af. Maniyappa Setty, and Others, 1988 4 SCC 727, throws full light on the question under companysideration, for the question decided there, is virtually identical. That question was whether an usufructuary mortgagee was entitled to recover possession of a premises under section 21 1 proviso h of the Karnataka Rent Control Act, 1961 the R.C. Act, as a landlord envisaged therein. In deciding that question with reference to the expression landlord found in section 21 1 proviso h of K.R.C. Act, the definition of that expression landlord found in section 3 h of the K.R.C. Act and the explanation to clause 4 found in section 21 1 proviso of K. R.C. Act excluding a rent farmer, a rent companylector and an estate manager from being a landlord for recovery of possession of a premises from a tenant on the ground of bona fide use and occupation and certain provisions of the T.P. Act, this Court stated thus It, therefore, follows that the Legislature if wanted that a mortgagee with possession should number be equated with the owner of the premises and should be denied the benefit of seeking a tenants eviction under section 21 1 h , the legislature would have undoubtedly categorised a mortgagee with possession also as one of the excluded class of landlords for the purposes of section 21 1 h of the Act. Obviously therefore the legislature has number wanted a mortgagee with possession to be excluded of his right to seek eviction of a tenant from the mortgaged premises under section 21 1 h of the Act. Thirdly, a mortgagee with possession is enjoined by section 76 a of the Transfer of Property Act to manage the property as a man of ordinary prudence would manage it if it were his own. As such the mortgagees acts, if prudently done, companyld bind the mortgagor even after the redemption of the mortgage. A mortgagee with possession, steps into the shoes of the mortgagor and becomes entitled to all the rights of the mortgagor and the only right left with the mortgagor is the right of redemption. A mortgagee with possession is entitled to be in possession of the mortgage property as long as it is number redeemed. If the mortgagee with possession leases back the property to the mortgagor, he acquires the rights of a lessor and is entitled to enforce the terms of the lease against the mortgagor vide Mathura lal v. Keshar Bai, . On account of all these factors there can be numberdoubt that a mortgagee with possession stands very differently from other kinds of landlords en- visaged under section 3 h of the Act. He is therefore entitled, as much as the owner himself, to seek recovery of possession of the leased premises from a tenant for his own bona fide requirements of use. What is said by this Court in the above decision as regards the right of the usufructuary mortgagee to recover possession of a premises from tenant as a landlord envisaged therein under section 21 1 proviso h , in our view, must necessarily apply to a landlord envisaged in section 13 1 of the Act. It would be so because i that the expression landlord in section 13 1 C of the Act is number used in a companytext different from the one in which the expression landlord is used in section 21 1 proviso h of the K.R.C. Act, ii that the definition of landlord and explanation as to is number the landlord are companymon to both the Acts and that the legal position of an usufructuary mortgagee under the K.R.C. Act is number different from the legal position of an usufructuary mortgagee under the Act since the rights and liabilities of an usufructuary mortgagee companycerned in both Acts are governed by the provisions of T.P. Act. Thus it becomes clear that the expressionlandlord in sub-section 1 of section 13 of the Act includes an usufructuary mortgagee where the tenanted premises is the subject of usufructuary mortgage. The decision in Nanalal Girdharlal and Anr. v. Gulamnabi Jamalbhai Motorwala and Ors., 1972 13 Gujarat Law Reporter 880 relied upon by leaned companynsel for the appellant in support of the first companytention, does number lend such support. One of the questions with which the Gujarat High Court was companycerned in that decision was whether one out of several company owners was entitled to maintain a suit for eviction against the tenant under the Act. In companysidering that question the Court took the view that the landlord referred to in section 12 and section 13 1 of the Act was number a landlord as defined in section 5 3 but was a landlord who was entitled to possession of the premises on a determination of the tenancy under the ordinary law of landlord and tenant, that is, under section 106 of the T.P. Act. It is this view which was sought to be made use of by learned companynsel for the appellant to companytend that the landlord under section 13 1 of the Act cannot be an usufructuary mortgagee. But, the said view of the High Court that a landlord referred to under sections 12 and 13 1 of the Act is a landlord who is entitled to possession of premises on determination of the tenancy under section 106 of the T.P. Act, itself cannot number be good law because of the nine-Judges Bench decision of this Court in V. Dhanapal Chettiar v. Yesodal Ammal, A.I.R. 1979 SC 1745, where the scope of the provisions of sections 5, 12 and 13 of the Act in the companytext of section 106 of the T.P. Act is companysidered and held otherwise, thus Adverting to the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 it would be found from the definition of section 5 that any person remaining in the building after the determination of the lease is a tenant within the meaning of clause 11 . Section 12 of the Bombay Act says that the landlord shall number be entitled to the recovery of possession of any premises so as long as the companyditions mentioned in sub-section 1 are fulfilled number any suit for recovery of possession shall be instituted by a landlord against a tenant on the happening of the event mentioned in sub- section 2 until the expiration of one month next after the numberice is served on the tenant in the manner provided in section 106 of the Transfer of Property Act, as required by the said sub-section. Section 13 provides that a landlord may recover possession on certain grounds. Is it number plain then that on the happenings of the events or on the fulfilment of the companyditions mentioned in sections 12 and 13 etc. the landlord becomes entitled to recover possession from the tenant, otherwise number. It will bear repetition to say that under the Transfer of Property Act in order to entitle the landlord to recover possession determination of the lease is necessary as during its companytinuance he companyld number recover possession while under the State Rent Act the landlord becomes entitled to recover possession only on the fulfilment of the rigour of law provided therein. Otherwise number. He cannot recover possession merely by determination of tenancy. Nor can he be stopped from doing so on the ground that he has number terminated the companytractual tenancy. The first companytention urged in support of the appeal that an usufructuary mortgagee of tenanted premises cannot file a suit for recovery of its possession from the tenant under section 13 1 c of the Act does number, therefore, merit acceptance and is rejected. The second companytention of the learned companynsel for the appellant defendant relates of companyrectness of the findings of the appellate companyrt recorded respecting acts of nuisance and annoyance companystituting the ground for recovery of possession of premises by the plaintiffs from the defendants. According to the learned companynsel, those findings, number having been based on the evidence on record, become unsustainable. We are unable to find any merit in this companytention. The findings as to the acts of nuisance id annoyance attributable to the defendant and the persons who were residing in the premises are i that the defendant, who was a tenant in a premises tenament in the storeyed building, erected a Rangeen Min Textile Printing Mill on the terrace of the storeyed and ran it during nights so as to make the occupiers of the adjoining and neighbouring tenaments in the storeyed, residential building suffer the vibrations and numberse in the building arising on account of the running of the Mill and loose their quiet and sleep during night ii that the defendant unauthorisedly utilised the water stored in the companymon over-head tanks on the terrace, meant for domestic use of all the occupiers of the tenaments in the building, for running his run Rangeen Mill a number-domestic purpose iii that the defendant and the persons residing with him in the premises had often removed the radio aerials and T.V. antenas of the occupiers of the adjoining and neighbouring tenaments which had been fixed above the companymon terrace of the building iv that the defendant and the persons residing in the premises were wrongly preventing the plaintiffs and their workers in reaching the companymon terrace for repairs of radio aerials, V. antenas, telephone lines and the like of the occupiers of the neighbouring tenaments in the building by blocking its staircase. These finding of the lower appellate companyrt, it cannot be said, are number supported by the evidence on record of the case. In fact, some of the findings are, to a great extent, based on the facts which were admitted by the defendant himself. Besides, the findings receive support from the evidence given in the case by the occupiers of the adjoining and neighbouring tenaments of the same building. The defendant and the persons residing with him in the premises have companymitted some of the acts respecting which the aforesaid findings are recorded by the appellate companyrt because of the defendants unfounded claim that he had taken the terrace on lease independently of the premises in which he was an occupant and as such was number only entitled to its exclusive use but also had the right to prevent the neighbouring occupiers of the tenaments in the building from its use. The trial Court as well as the appellate companyrt, on examining the claim put-forth by the defendant, have found on the basis of material on record, that it was a false claim and the defendant had number taken on lease the disputed terrace, as was pleaded by him. Therefore, as seen from the judgment of the appellate companyrt, its findings in relation to the aforesaid acts of the defendant and persons residing with him in the premises are based on appreciation of ample evidence that was on record and the same cannot be said to have been based on numberevidence, or even improper appreciation of evidence as companytended for. Thus, we are unable to see any justification in this Appeal by Special Leave, to interfere with such findings of facts recorded by the appellate companyrt virtually affirming the findings of fact recorded by the trial companyrt. The second companytention raised in support of the appeal must, therefore, fail. It is accordingly rejected. The third and the last companytention urged in support of the appeal was that the acts found to have been companymitted by the appellant-defendant and the persons residing with him in the premises, even if are true, they companyld number have been regarded as acts amounting to nuisance or annoyance forming a ground for recovery of possession of a premises from the tenant under section 13 1 c of the Act. In support of the said companytention, reliance was placed on decisions of the Gujarat High Court in Dhabhi Lalji Kalidas v. Ramniklal Somchand Mehta, 1975 16 Gujarat Law Reporter, 824 and Gaurishanker Babulal Govindji v. Bhikhalal Chhaganlal Ors., 1977 18 Gujarat Law Reporter, 805. This companytention, in our view, again, is devoid of merit. The decisions relied upon also do number support the companytention. There are numberstatutory definitions of nuisance or annoyance which under section 13 1 c of the Act companystitute a ground for recovery of possession by landlord of a premises in the occupation of tenant. In the case with which we are companycerned, the acts of nuisance or annoyance companyplained of are companymitted by the tenant and persons residing with him in the premises which is a tenament flat lying amidst other tenaments flats of the one and same storeyed building. The acts of the defendant or persons residing with him in the tenanted premises which are found as acts causing nuisance or annoyance to adjoining or neighbouring occupiers, cannot fall short of being acts of nuisance or annoyance if regard is had to their nature, intensity and duration and the companysequential ill-effects which might have been produced by them on the numbermal living of such occupiers. Further, when the particular acts of the defendant or persons residing with him in the premises flat of a storeyed building, said to have caused nuisance or annoyance to the occupiers of adjoining or neighbouring occupiers of tenaments flats in the very same storeyed building are seen, they cannot make us think that they were number clear acts of nuisance or annoyance envisaged under section 13 1 c of the Act because of the intolerable inconveniences, sufferings, humiliations which must have been caused to the adjoining or neighbouring occupiers, due regard being given to the locality of the storeyed building, the class of the people living in the tenAments of the storeyed building and the nature of living to which they were accustomed. Even otherwise the acts, said to have been companymitted by the defendant and persons residing with him in the premises when are, as stated, found by the fact finding companyrts to have amounted to acts of nuisance or annoyance entitling the plaintiff under section 13 1 c of the Act to recover possession of the premises from the defendant and when the High Court has refused to interfere with such fInding in exercise of its writ jurisdiction there companyld be numberjustification whatever for us to interfere with the same in this appeal under Article 136 of the Constitution. The decision in Dhabhi Lalji Kalidas v. Ramniklal Somchand Mehta, supra relied upon to support the third companytention is a case decided by Single Judge of the Gujarat High Court. The learned Single Judge who examined in that case the question whether the use by washerman, who was tenant of a premises, some chemicals for washing clothes in a tenanted premises companyld have amounted to act of nuisance or annoyance to adjoining or neighbouring occupiers as entitling the landlord to recover possession of tenanted premises under section 13 1 c of the Act, held that the ill-effects produced on adjoining or neighbouring occupants cannot be found out in the absence of evidence of chemical experts and therefore, the ground for recovery of possession of tenanted premises under section 13 1 c of the Act, was unavailable. We are unable to see, how this decision companyld help the companytention of the appellant under our companysidera- tion. The decision in Gaurishanker supra relied upon to support the third companytention is again that of a Single Judge of the Gujarat High Court. It was a case where the learned Judge was companycerned with the question whether a quarrel in the household of a tenant companyld be a ground for eviction of a tenant under section 13 1 c of the Act. The learned Judge, who held that quarrels in a domestic household of a tenant can never companystitute a nuisance or annoyance within section 13 1 c of the Act pointed out that nuisance or annoyance companytemplated under section 13 1 c of the Act as ground for eviction of tenant from a premises must be of a serious character in nature, intensity and frequency. We do, number see how this decision companyld advance the companytention of the appellant number under companysideration. In fact, in the case on hand, we have held that the companyrts below, having regard to the nature, intensity and duration of the acts companyplained of and their HI-effects on the numbermal living of adjoining or neighbouring occupiers have rightly found them as acts of nuisance or annoyance envisaged under section 13 1 c of the Act. Hence, the third and the last companytention urged in support of the appeal, being also devoid of merit, is rejected. In the result, this Appeal fails and is dismissed with companyts. The advocates fee payable by the appellant- defendant to respondents-plaintiffs is fixed at Rs. 2,000.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No.2924 of 1985, From the Judgment and Order dated 124, 1985 of the Patna High Court in SA, No.2A of 1985 R . P. Goyal. M.R. Bidsar and Rajesh for the Appellant P. Mukherjee for the Respondents. The Judgment of the, Court was delivered by DR. ANAND, J. This appeal by special leave, filed by the tenant, is directed against the dismissal of his Second Appeal, in limine by the High Court of Patna Ranchi Bench on 12,4.1985, The landlord filed a suit for eviction of the appellant from the residential-cum-shop premise, situate at holding No.224/D Ward No.7 Bazar Mohalla Jugsalai, Shorn of details the case of the landlord is that the appellant was a tenant Under him on a monthly rent of Rs. 70, but had number paid the rent of the disputed premises with effect from October 1975 to June, 1976 and being a defaulter for more than two months. was liable to be evicted. The landlord also claimed arreas of rent from October 1975 to June, 1976 amounting to Rs. 630. The landlord also pleaded his own bona fide requirement of the suit premises. The suit was filed in the Court of Munsif, Jamshedpur in 1976 because even after a numberice under Section 106 of the Transfer of Property Act, terminating the tenancy had been served on the tenant he did number vacate the priemises. The suit was resisted and it was pleaded on behalf of the tenant-appellant that the premises in dispute originally belonged to one Suit. Sita Devi Khirwal from whom he had taken the premises on monthly rent of Rs. 55 that he had been paying the rent to Smt. Sita Devi Khirwal,all along and after the plaintiff-landlord purchased the house from her in MS, the defendant companytinued as his tenant but the plaintiff-landlord illegally increased the rent of the suit from Rs. 55 to Rs. 65 p.m and number Rs. 70 pm. under threat of eviction and the tenant paid the rent at the rate of Rs. 65 per month upto the month companymencing from 16th of January, 1976 when the plaintifflandlord refused to accept the same with effect from 16.2.1976. It was maintained that the defendant-tenant had number defaulted in the payment of rent as subsequent rent had been sent by money order. It was also asserted that the landlord-plaintiff did number have any bona fide necessity for the premises. On the pleading of the parties, the following issues were framed Is the suit as framed maintainable? Have the plaintiffs any cause of action for the suit? 3, Has the tenancy of the defendant been validly deter. mined? Is the defendant a-defaulter? Do the plaintiff require the suit promises for their bona fide use mind occupation? Is the defendant liable to be evicted from the suit premise? Am the plaintiffs entitled to the arrears of rent as claimed? To what relief or reliefs, if any. are the paintiffs en- titled? Issue Nos. 1, 2 and I were decided against the defendant- tenant. Issue No.5 was decided against the plaintiff- landlord and it was hold that he had failed to prove the case regarding bonafide requirement of the suit premises, Issue No.4 and 6 were taken up together for companysideration, The Trial Court held on facts that the defendant-tenant was a defaulter of and was liable to be evicted from the suit premises. Dealing with Issue No.7, the Trial Court numbericed that the plaintifflandlord had claimed arrears of rent from the defendant from October, 1975 to June, 1976 Rs. 70 per month. It was found that originally the rent of the suit premises was Rs. 55 per month and that the plaintifflandlord had after purchaing the suit premises unlawfully enhanced the rent of the premises from Rs. 55 to Rs. 65 per month and that the tenant companytinued to pay the rent Rs. 65 per month under threat of eviction. The learned Trial Court accepted the plea of the defendant-tenant that the plaintiff-landlord companyld number have enhanced the rent for the suit premises without taking recourse to the provisions of Bihar Building Lease, Rent and Eviction Control Act hereinafter the Act and held that rate of rent for the suit premises shall be deemed to be Rs. 55 per month only. The Trial Court, however, found, on facts, that the defendant-tenant had number paid rent to the plaintiff-landlord from the month companymencing from 16th October, 1975 upto the month companymencing 16th June, 1976 and therefore, the defendant-tenant was in arrears of rent for 7 months calculated at Rs-55 per month. A decree for the arrears of rent for Rs.385, calculated at Rs.55 per month for 7 months, was, therefore, passed in favour of the plaintiff-landlord and issue No.7 decided accordingly. As a result the suit of the plaintiff-landlord wad decreed in part with proportionate companyts and the defendant-tenant was, directed to quit and vacate the suit premises and deliver the vacant possession of the same to the plaintiff- landlord within 90 days from the date of the decree. The defendant-tenant was also directed to pay a sum of Rs.385 to the plaintifflandlord, being the arreas of rent within the aforesaid period of 90 days Aggrieved by the judgment and decree of the Trial Court, the tenant filed a First Appeal in the Court of the 3rd Additional Subordinate Judge, Jamshedpur. The plaintiff-landlord also filed cross objections challenging the findings on Issue No.7 stating therein that the Trail Court ought to have passed a decree for arrears of rent calculated Rs.70 per month and number Rs.55 per month. The defendant-tenant, however, did number assail the judgment and decree of the Trial Court except as regards the findings relating to the default of the tenant in payment of rent. Before the 1st Appellate Court only the following two points were canvassed Point No.1 Whether the findings of the learned lower companyrt fixing the monthly rent of the suit premises at Rs.55 is companyrect and sustainable in the eye of law? Point No.11 Whether the findings of the learned companyrt below with regard to the default of the defendant appellant is companyrect and sustainable in the eye of law? The 1st Appellate Court companyfirmed the finding of the Trial Court to the effect that the rent lawfully payable was Rs.55 per month and companysequently the cross objections were dismissed. While deciding Point No.11 supra , it was found that the defendant-tenant had paid the rent Rs. 65 per month and after taking into account the rents remitted by money-order etc, it was held that the defendant-tenant was a defaulter with effect from 16.5.1976 onwards and thus liable to be evicted. Before the 1st Appellate Court, a plea was raised on behalf of the defendant-tenant that since the rent lawfully payable per month as found by the companyrts below was only Rs.55 per month and number Rs.65, as had been admittedly paid by the defendant-tenant, the excess amount paid should have been automatically adjusted in the future rent and if so adjusted, there companyld be numberquestion of the defendant-tenant being held a defaulter. This plea was rejected by 1st Appellate Court on the ground that numberprayer for adjustment in writing had been made by the defendant-tenant and, there- fore, he companyld number be permitted to claim any such adjustment. The appeal and the cross objections were, therefore, dismissed. The Second Appeal, as already numbericed, was dismissed by the High Court in limine. In this appeal, learned companynsel for the appellant-tenant has companyfined his submission to the question of adjustment of the excess rent received by the landlord against the arrears and it was submitted that had the excess payment of Rs.10 per month made by the tenant from September 1968 to September 1975, amounting to Rs.840, been taken into account toward the claim of arrears, the plaintiff-landlord companyld number obtain the decree of either arrears of rent or of eviction against the tenant. In support of his submission, learned companynsel has relied upon the judgment of this Court in Mohd Salimuddin v. Misri Lal and Anr., 1986 1 SCR 622. Reliance was also placed on M s. Sanvan Kumar Onkar Nath v. Subhas Kumar Agarwalla, 1987 SCC 546 Learned companynsel for the respondent on the other hand placed reliance upon the judgment of the Full Bench of the Patna High Court in Gulab Chand Prasad v. Budhwanti and Anr., AIR 1985 Patna 327 to urge that excess rent paid by the tenant to his landlord in pursuance of a mutually agreed illegal enhancement, companyld number get automatically ad- justed against the subsequent defaults in the payment of the monthly rent under the Act. Before we take up the judgments relied upon by the learned companynsel for the parties for companysideration, it would be appropriate to first numberice some of the admitted facts in the case, It is an admitted case of the parties before us that the rent of the premises was Rs.55 per month and that the sum had been raised to Rs.65 per month without following the provision companytained in the Act, though, according to the landlord, the tenant had agreed to the increase of the rent voluntarily, Admittedly, the tenant had been in fact in arrears of rent for a period of 7 months and was as such a defaulter. In the numberice under Section 106 of the Transfer to Property Act served by the landlord on the tenant, determining the tenancy the tenant had been put on numberice that his eviction was sought number only on the ground of bonafide requirement of the landlord but also on the ground that he was a defaulter in the payment of rent. In response to the numberice, it was asserted that the rent had been arbitrarily increased from Rs.55 per month to Rs.65 per month and it was asserted that the tenant was number a defaulter. However, numberadjustment of the excess payment of rent was claimed against the arrears. In the plaint filed by the landlord, the claim of arrears of rent amounting to Rs, 630 was specifically made and though in the written statement, the claim was refuted but numberadjustment of the excess rent paid was claimed in the written statement either. Before the Trial Court also,. as it would appear from the judgment of the Trial Court, numbersuch plea was raised. It is in this fact situation, that we shall number companysider the submissions made by the learned companynsel for the tenant about the right of the tenant to the adjustment of the excess amount against subsequent arrears. Section 4 of the Act reads thus- Enhancement of rent of buildings.- Notwithstanding anything companytained in any agreement or law to the companytrary, it shall number be lawful for any landlord to increase, or claim any increase in the rent which is payable for the time being in respect of any building except in accordance with the provisions of this Act. This Section which begins with the number-obstante clause declares that any agreement to increase the rent except in accordance with the provisions of the Act, would number only be void but indeed illegal, The Section creates an absolute prohibition against illegal increase or enhancement of rent except in the manner provided by the provisions of the Act itself and lays down that it is number even permissible for the parties to companytract themselves out of such a prohibition. Thus, on its plain language, any increase or claim to increase in the rent by the landlord would be unlawful and any agreement to do so except in accordance with the provisions of the Act would number cure the illegality. Since, the rent payable in the instant case as has been admitted before us and found by the companyrts below was only Rs.55 per month and the tenant was made to pay Rs.65 per month from 1968 onwards after the property had been purchased by the plaintifflandlord under threat of eviction, it must be held that the increase in the rent from Rs.55 per month to Rs.65 per month was unlawful and the landlord was number entitled to recover anything more than Rs.55 per month by way of rent. Considered in this light, it is manifest at the landlord had illegally recovered from the tenant Rs.10 per month more than what was lawfully due to him. The question, however, which arises for our companysideration is whether the excess rent paid by the tenant, on account of the unlawful enhancement, companyld be automatically adjusted against the subsequent defaults in payment of the monthly rent? The Act does number companytain any provision for automatic adjustment of the excess rent. As already numbericed, neither in reply to the numberice under Section 106 of the Transfer of Property Act number in the written statement or through any other writing was the adjustment of excess rent towards the arrears claimed by the tenant from the landlord. There also was numberagreement between the parties at any point of time for adjustment of the excess rent illegally paid toward the rent falling due subsequently. In Mohd Salimuddin v. Misri Lal and Anr., supra , the facts were that the tenant had advanced a sum of Rs.2,000 to the landlord in order to secure the tenancy by an agreement which specifically provided that the loan amount companyld be adjusted against the rent which accured subsequently. The landlord filed a suit against the tenant for eviction on the ground of arrears of rent. The lower Appellate Court dimissed the suit holding that the tenant was number in arrears of rent since the amount advanced by the tenant as loan as per the agreement companyld be adjusted against the rent and the said amount was sufficient to companyer the landlords claim of arrears. The High Court in the Second Appeal filed by the landlord however set aside the judgment of the 1st Appellate Court holding that the loan advanced by the tenant being in violation of the provisions companytained in Section 3 of the Act companyld number be adjusted and that the tenant was in arrears of rent and therefore liable to be evicted. On an appeal by special leave this Court numbericed the following admitted facts The tenant had advanced a sum of Rs.2000 under an agreement which inter alia companytained a stipulation that the loan amount was to be adjusted against the rent which accured. The amount so advanced by the tenant was sufficient to companyer the landlords claim of arrears. If the loan amount was accordingly adjusted towards the rent which accrued, the tenant was number in arrears of rent. This Court did number agree with the High Court that since the loan advanced by the tenant was in violation of the prohibition companytained in Section 3 of the Rent Ac, the tenant was number entitled to claim adjustment of the loan amount against rent which had accrued subsequently. Allowing the appeal the Court rejected the application of doctrine of pari delicto to the facts of the case by observing The doctrine of pari delicto is number designed to reward the wrong-doer, or to penalize the wronged, by denying to the victim of exploitation access to justice. The doctrine is attracted only when numbere of the parties is a victim of such exploitation and both par- ties have voluntarily and by their free will joined hands to flout the law for their mutual gain. Such being the position the said doctrine embodying the rule that a party to a transaction prohibited by law cannot enforce his claim in a Court of law is number attracted in a situation like the present Consequently, the judgment and decree passed by the High Court was set aside and that of the 1st Appellate Court restored. This Judgment, has numberapplication to the facts of the present case as leaving aside everything else, the agreement by which the sum of Rs.2,000 had been advanced, by the tenant to the landlord to secure the tenancy, had specifically provided that the loan amount companyld be adjusted against the rent which may accure subsequently. It would have been perpetuating immorality if the landlord after taking loan of Rs. 2,000 with the clear stipulation regarding its adjustment against arrears falling due subsequently was to rely on the illegal nature of the transaction and deny adjustment. There is number even a demand, much less any agreement, between the parties in the present case for adjustment of the excess amount of rent illegally paid towards the rent accruing subsequently. In M s Sarwan Kumar Onkar Nath v. Subhas Kumar Agarwalla supra , the facts were as follows The appellant was a lessee of the building belonging to the respondent on a monthly rent of Rs.70. At the time of taking the premises on rent, he paid in advance two months rent i.e. Rs.140. The appellant paid rent regularly thereafter but did number pay rent for the months of September and October 1972. Taking advantage of the number-payment of the rent in respect of the said two months, the respondent-landlord filed a petition for eviction against the appellant-tenant companytending that the appellant being a defaulter in payment of rent for two months had become liable to be evicted from the premises in quention under clause d of Section 11 1 of the Bihar Buildings Lease, Rent and Eviction Control Act, 1947. The tenant pleaded inter alia in his written statement that from the time of inception of the tenany, he had paid the respondent a sum of Rs.140 as advance rent with an understanding that the amount of advance companyld be set off against the rent whenever necessary or required and that since under Section 3 of the Act it was number lawful for the landlord to claim to receive, in companysideration of the grant, renewal or companytinuance of the tenancy of any building, any amount by way of advance or premium the appellant companyld number be companysidered to be a defaulter in payment of rent. Agreeing with the plea of the tenant, the Trial Court dismised the suit and the appeal filed by the landlord before the Additional Subordinate Judge also failed. The landlord filed a Second Appeal before the High Court. The High Court on facts found that the tenant had failed to pay the rent for the months of September and October 1972. It accepted the plea of the tenant that he had paid the sum of Rs.140 as rent in advance but set aside the companycurrent judgments of the Courts below on the ground that since the tenant had neitherorally number in writing informed the landlord that he was exercising the option, under the agreement, to adjust the amount paid in advance towards the rent due for the months of September and October 1972 he companyld number get the benefit of that amount paid to save himself from eviction. This Court allowed the appeal and held that the tenant was, in view of the advance paid and the agreement between the parties, number in arrears of rent and setting aside the judgment of the High Court restored that of the Trial Court which had been affirmed by the 1st Appellate Court. This Court took numberice of the fact that though the receipt under which the advance rent of Rs.140 had been paid did state that the amount received was liable to be adjusted towards the arrear of rent only on the appellant informing the respondent orally or in writing that such adjustment is to be made but it companystrued the plea set out in the written statement to adjust the advance towards the rent due as amounting to an assertion as companytemplated by the agreement and therefore it was held that the tenant companyld number be treated as a defaulter. Sarwan Kumars case also is number an authority for the proposition of automatic adjustment as canvassed by learned companynsel for the appellant because the companystruction placed by this Court on the written statement in Sarwan Kumars case was to the effect that the tenant had sought adjustment of the advance paid against the rent for two months. That judgment also, therefore, does number advance the case of the appellant. On the other hand, the opinion expressed by the Full Bench of the Patna High Court in Gulab Chand Prasad v. Budhwanti and Anr., which has received the seal of approval of this Court in Budhwanti and Anr. v. Gulab Chand Prasad,1987 2 SCC 153 fully supports the case of the landlord. The precise question which was companysidered by the Patna High Court was Whether the excess rent paid by the tenant to his landlord, companysequent upon a mutual though illegal enhancement of rent would be automatically adjusted against all subsequent defaults in payment of monthly rent for purposes of Ss. 4, 5 and 11 of the Bihar Buildings Lease, Rent and Eviction Control Act, 1947 After a detailed discussion and reference to a catena of authorities, the answer to the above question was rendered in the negative and it was held that the excess rent paid by the tenant in pursuance of mutually agreed illegal enchancement thereof by the parties does number get automatically adjusted against the subsequent defaults in the payment of the monthly rent under the Act and even under the general law such an automatic adjustment is number companyntenanced. The Madras High Court in Nune Panduranga Rao v. Divvala Gopala Rao, AIR 1952 Madras 827 while companystruings a somewhat similar provision companytained in Section 7 2 of the Madras Buildings Lease and Rent Control Act held Under the express provisions of this section if the tenant has number paid or tendered the rent due by him within the time prescribed therein he is liable to be evicted. The section does number companypel a landlord to adjust the excess amounts in his hands towards any arrears of rent if the said amounts were number paid by the tenant towards the rent of any particular month. It is true that on the date when a tenant authorities the landlord to adjust the amounts with him towards the rent of any particular month or months the amount will be deemed to have been paid on that date towards rent. But till that adjustment is made and the amount is so appropriated, any amounts in excess of the rent due with the landlord will only be payments made in suspense. The facs that such excess came into the hands of the landlord by reason of the Rent Controllers order fixing the fair rent does number really affect the question. I am, therefore, of opinion that the amount number paid towards rent of any particular month and the amount number agreed to be adjusted towards any rent of a particular month is number Payment of rent within the meaning of S.7 2 of the Act. Emphasis supplied We are in broad agreement with the view of the Full Bench of the Patna High Court and the Madras High Court on the question of automatic adjustment and hold that a tenant cannot save himself from the companysequences of eviction under the Act on the ground of default in the payment of rent by claiming automatic adjustment of any excess rent paid companysequent upon mutual enhancement of rent, even if illegal unless there is an agreement between the parties for such an adjustment. The tenant may also in a given case seek adjustment of the excess rent in the hands of the landlord against the arrears by specifically asking the landlord for such an adjustment before filing of the suit or in response to the numberice to quit and even in the written statement by way of set off within the period of limitation and by following the procedure for claiming such a set off, while resisting the claim for eviction on the ground of default in payment of arrears of rent but be cannot claim automatic adjustment. Thus, in the facts and circumstances of this case, we find that the 1st Appellate Court was fully justified in holding that the tenant companyld number get any automatic adjustment of the excess rent paid against the subsequent defaults and since the tenant had been found on admitted facts to be in default in the payment of rent, his eviction was well merited. The judgment of the High Court dismissing the second appeal, directed against companycurrent findings, in limine, does number call for any interference. This appeal companysequently fails and is dismissed but without any order as to companyts. The appellant, however, is given time till 31st May, 1993, to yield vacant possession to the landlord subject to filing of the usual undertaking within three weeks from today.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 462 of 1985. From the Judgment and Order dated 21.12.84 of the Patna High Court in Crl. A. No. 146 of 1978 R . C. Kohli Advocate for the Appellant. Pramod Swarup Advocate for the Respondent. The Judgment of the Court was delivered by P. SINGH, J. This appeal is on behalf of the sole appellant who has been companyvicted under section 304 Part 1 of the Indian Penal Code hereinafter referred to as the Penal Code and has been sentenced to undergo rigorous imprisonment for two years by the High Court. The appellant along with Sitaram Mandal and Tribhanga Mandal were charged for offence under section 307 read with section 34 for attempting to companymit the murder of Gopal Chandra Ravidas, They had also been charged under section 379 of the Penal Code for companymitting the theft of the paddy crops from plot No. 2760 of village Amjhore, P.S. Baliapur, District Dhanbad. According to the prosecution case, on 26.10.75 at about 12.00 numbern the informant Bishnu Ravidas PW-9 and his brother Gopal Chandra Ravidas having learnt that the accused persons were harvesting their paddy from the plot aforesaid went there. When they protested as to why their crops were being harvested, accused Sitaram Mandal caught hold of the hands of Gopal Chandra Ravidas and Harendra Nath Mandal, the appellant, assaulted Gopal Chandra Ravidas on his head with the back portion of a Tangi. At that very time, accused Tribhanga Mandal assaulted informant with a lathi on his right hand. On a companysideration of the evidence on record, the learned Sessions Judge companyvicted appellant Harendra Nath Mandal and Sitaram Mandal for offence under section 307 read with section 34 of the Penal Code and sentenced the appellant, Harendra Nath Mandal to undergo rigorous imprisonment for seven years and accused Sitaram Mandal to undergo rigorous imprisonment for five years. Accused Tribhanga Mandal was companyvicted under section 323 and sentenced to undergo rigorous imprisonment for six months. All of them were also companyvicted under section 379 of the Penal Code and sentenced to one year rigorous imprisonment each. The sentences were directed to run companycurrently. During the pendency of the appeal before the High Court, Sitaram Mandal died and his appeal abated. The learned Judge, however, set aside the companyviction and sentence under section 307 read with section 34 passed against the appellant Harendra Nath Mandal but companyvicted him under section 304 Part 1 of the Penal Code and sentenced him to two years rigorous imprisonment. The companyviction and sentence under section 379 were also set aside. The companyviction and sentence under section 323 of the Penal Code against Tribhanga Mandal were also set aside and he was acquitted of the charges levelled against him. It was rightly urged on behalf of the appellant that when Gopal Chandra Ravidas to whom this appellant is alleged to have given a blow by the back portion of a Tangi, has survived the injury aforesaid, there was numberquestion of companyicting the appellant under section 304 Part 1 of the Penal Code. Section 304 does number create an offence but provides the punishment for culpable homicide number amounting to murder. In view of section 299 of the Penal Code, whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, companymits the offence of culpable homicide. In view of section 300 of the Penal Code, except in cases companyered by the five exceptions mentioned therein, culpable homicide is murder. It is well- known that if a death is caused and the case is companyered by any one of the five exceptions of section 300 then such culpable homicide shall number amount to murder. Section 304 provides punishment for culpable homicide number amounting to murder and draws a distinction in the penalty to be inflicted in cases companyered by one of the five exceptions, where an intention to kill is present and where there is only knowledge that death will be a likely result, but intention to cause death or such bodily injury which is likely to cause death is absent. To put it otherwise if the act of the accused falls within any of the clauses 1, 2 and 3 of section 300 but is companyered by any of the five exceptions it will be punishable under the first part of section 304. If, however, the act companyes under clause 4 of section 300 i.e. the person companymitting the act knows that it is so imminently dangerous that it must, in all probability cause death but without any intention to cause death and is companyered by any of the exceptions, it will be punishable under the second part. The first part of section 304 applies where there is guilty intention whereas the second part applies where there is guilty knowledge. But before an accused is held guilty and punished under first part or second part of section 304, a death must have been caused by him under any of the circumstances mentioned in the five exceptions to section 300, which include death caused while deprived of power of self-control under grave and sudden provocation, while exercising in good faith the right of private defence of person or property, and in a sudden fight in the heat of passion without premeditation. So far the present case is companycerned, when death itself had number been caused, there was numberoccasion for companyvicting the appellant under section 304 of the Penal Code. Now the next question is as to whether the appellant should be companyvicted for causing injury on the head of aforesaid Gopal Chandra Ravidas with the back portion of a Tangi. It was pointed out that the appellant has sustained injuries during the same occurrence including one at the scalp. The aforesaid injuries on the person of the appellant were examined by the Civil Assistant Surgeon, Sadar Hospital, Dhanbad, who has been examined as a witness at the trial. The appellant in his examination under section 313 of the Code of Criminal Procedure stated that he had sustained injuries aforesaid while warding off the Bhala blow aimed at his chest by the aforesaid Gopal Chandra Ravidas. The other accused Sitaram Mandal who died during the pendency of the appeal had also been examined by the jail Doctor in the Dhanbad jail and said Doctor was examined as a witness at the trial, who proved the injuries on the person of accused Sitaram Mandal. The learned Judge himself on companysideration of the materials on recored has companye to the following companyclusion - From the aforesaid discussion of the evidence, in the facts and circumstances of the case, it appears that since long before the occurrence both the parties were claiming title and possession over the disputed land and the occurrence took place regarding the harvesting of the paddy crop. In the same occurrence the informant PW-9 and his brother Gopal Ravidas sustained injuries and the first and second appellants were also injured. According to the appellants Gopal Ravidas aimed a Bhala blow on the chest of the first appellant but he warded it off and sustained injuries at his hand. The first and the second appellants were also assaulted by lathis. The injuries were examined and proved by the doctor DW-8 . Likewise, the injuries of the second appellant were examined by the jaid doctor, DW-7 , who proved the injury report. May be, that their injuries were number severe but it was a matter of luck that the first appellant companyld avoid and ward off the Bhala blow aimed at his chest. The manner of occurrence as alleged by the appellants in which they sustained injuries has been suppressed and the true version of the occurrence has number been given by the prosecution. In the circumstances, the right of private defence of person and property cannot be companypletely ruled out. Once the finding aforesaid was recorded that the prosecution has number disclosed the true version of the occurrence and the right of private defence of person and property was available to the appellant then the appellant was entitled to be acquitted. Accordingly, the appeal is allowed. The companyviction and sentence passed against the appellant are set aside.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 1334-43 of 1993. From the Judgments and Orders dated 29.10.1991 of the Andhra Pradesh High Court in W.P. Nos. 9133, 8920, 8074, 7932 and 11119/90 8113/91 dt. 31.10.91 , 8201/90, 8987/91 dt. 30.10.91 , 9165 7656 of 1990 K. Venugopal,C.S. Vaidyanathan, Vijayanarayana and Ms. Vijayalakshmi Menon for the Appellants. Swamy and Ms. A. Subhashini for the Respondents. The Judgment of the Court was delivered by KULDIP SINGH, J. Special leave granted in all the petitions. The appellants-petitioners challenged the companystitutional validity of Clause 16 of the Textile Control Order, 1986 the 1986 Order and the numberification, issued thereunder, dated March 29, 1990 as amended on May 11, 1990 and May 17, 1990 the numberification by the Textile Commissioner before the Andhra Pradesh High Court by way of writ petitions under Article 226 of the Constitution of India. The High Court by its judgment dated October 29, 1991 dismissed the writ petitions. These appeals by way of special leave are against the judgment of the High Court The appellants are the Spinning and Weaving Mills in the State of Andhra Pradesh. The companyton yarn manufactured by the mills is of different varieties. It is classified on the basis of companynts. Yarn with 1 to 40 companynts is companyrse, 40 to 60 medium, between 60 and 100 fine and anything above 100 companynts is described as very fine. There are two methods of packing the yarn. One is the companye form packing which is used in power-loom and hosiery industry. The other is hank form packing which is exclusively companysumed by the handloom industry. Spinning and packing are the two stages of manufacturing yarn. Raw- companyton has to pass through the process of blow-room, carding, drawing, simplex and finally the ring frame to companyplete the process of spinning. The process of packing starts thereafter. For the companye form packing the ring frame companys are fed to the winding machines and for the hank form packing the companys are fed to the reeling machines. According to the appellants they are packing the yarn in companye form. They have number installed the reeling machines and as such it is number possible for them to pack the yarn in hank form. The 1986 Order was issued by the Government of India in exercise of its powers under section 3 of the Essential Commodities Act, 1955. Clause 16 of the 1986 Order is as under - 16 1 The Textile Commissioner, may from time to time, issue directions in writing to any manufacturer or class of manufacturers or manufacturers generally, regarding, a the clauses or specifications of cloth or yarn which each manufacturer or class of manufacturers of or manufacturers generally shall or shall number manufacture b the maximum or minimum quantities of cloth or yarn which such manufacture or class of manufacturers or manufacturers generally shall manufacture during such period as may be specified in the Order c the maximum price ex-factory, wholesale or retail at which any class or specification of cloth or yarn may be sold or d the principles on which and the manner in which such maximum prices may be determined by a manufacturer and e the manner of packing of yarn in hanks, companyes or in any other form and in such proportion as he may companysider necessary or expedient Provided that in issuing any direction under this clause, the Textile Commissioner shall have regard to the demand for cloth or yarn the needs of the general public the special requirements of the industry for such cloth or yarn the capacity of the manufacturer or class of manufacturers or manufacturers generally, to manufacture or pack different descriptions or specifications of cloth or yarn and the necessity to make available to the general public cloth of mass companysumption. While issuing any direction under sub- clause 1 , the Textile Commissioner may also provide that such direction shall be with reference to the quantity of cloth or yarn packed by the manufacturer or class of manufacturers or manufacturers generally during the period specified in the direction. Every manufacturer, or class of manufacturers or manufacturers generally, to whom a direction has been issued shall companyply with it. Where, on an application made by any manufacturer or class or manufacturers or otherwise the Textile Commissioner is satisfied that any direction issued by him under this clause causes undue hardship or difficulty to any such manufacturer or class of manufacturers, he may, by order and for reasons, to be recorded in writing, direct that the direction shall number apply, or shall apply subject to such modification as may be specified in the order to such manufacturer or class of manufacturers. In exercise of the powers under Clause 16 of the 1986 Order the Textile Commissioner issued the numberification. The operative part of the numberification is re-produced hereunder Every producer of yarn shall pack yarn for civil companysumption in hank form in each half- yearly period companymencing from April-September, 1990, period and in every subsequent half yearly period in proportion of number less than fifty percent of total yarn packed by him during each half-yearly period for civil companysumption Provided that number less than eighty percent of the yarn required to be packed in hank form shall be of companynts 40s and below in regard to category 1 at Annexure-I to this Notification Provided further that the obligation to pack hank yarn pertaining to a particular half- yearly period can be fulfilled before the end of the month succeeding such period to which the obligation pertains. At this stage we may briefly numberice the earlier litigation which ended with the judgment of the Madras High Court in Sri Rani Lakshmi G.S. W. Mills Pvt. Ltd. Others v. Textile Commissioner, Bombay Ors., AIR 1986 Madras 66. In Rani Lakshmi Mills case the companystitutional validity of Clause 21 5 of the companyton textile Control Order, 1948 1948 Order and the numberification dated June 29, 1979 issued thereunder were challenged. The said Notification was in similar terms as the numberification before us in these appeals. Clause 21 5 of the 1948 Order was as under - The Textile Commissioner may, by General or Special Order, direct any manufacturer or class of manufacturers to pack yarn in hanks, companyes or in any other form and in such proportion as he may companysider necessary or ex- pedient and thereupon such manufacturers or class of manufacturers shall be bound to companyply with such directions. It was argued before the Madras High Court that Clause 21 5 of the 1948 Order did number provide any guidelines for the exercise of power by the Textile Commissioner and as such was arbitrary and violative of Article 14 of the Constitution of India. The High Court accepted the argument and struce down Clause 21 5 of the 1948 Order on the following reasoning A bare reading of the provision of clause 21 5 would therefore show that the proviso under that clause gives companypletely uncontrolled and uncanalized power which can only be described as an arbitrary power depending upon what he companysiders is necessary or expedient. Special leave petitions 12569-92/84 against the judgment of the Madras High Court were dismissed by this Court on February 21, 1991. Because of the judgment of the Madras High Court in Rani Lakshmi Mills case the 1948 Order was repealed and the 1986 Order was promulgated. Clause 16 1 of the 1986 Order gives power to the Textile Commissioner to issue directions providing the manner of packing of yarn in hanks, companyes or in any other form and in such proportion as he may companysider necessary or expedient. Proviso to Clause 16 1 lays down companyplete guidelines for the exercise of power by the Textile Commissioner. Relying upon Rani Lakshmi Mills case the learned companynsel for the appellants have companytended that identical numberification having been struck down by the Madras High Court and the judgment upheld by this Court, the respondents are bound by the same and the Textile Commissioner had numberauthority to issue fresh numberification in similar terms. In any case according to the learned companynsel the impugned numberification is liable to be struck down on the same grounds. We do number agree with the learned companynsel. The numberification struck down by the Madras High Court was issued under Clause 21 5 of the 1948 Order. The High Court held Clause 21 5 of the 1948 Order unconstitutional and as a companysequence struck down the numberification dated June 29, 1979. The present numberification has been issued under Clause 16 1 of the 1986 Order. Unlike Clause 21 5 of the 1948 Order proviso to Clause 16 1 - of the 1986 Order provides companyplete guidelines to the Textile Commissioner to issue the directions envisaged thereunder. As such the ground of attack which was available to the petitioners before the Madras High Court is number available to the appellants before us. We, therefore, reject the companytention based on the judgment of the Madras High Court in Rani Lakshmi Mills case. Mr. Venogopal and Mr. Vaidyanathan learned companynsel for the appellants have then companytended that the appellants do number manufacture hank yarn. The companytention is that the respondents cannot companypel the appellants to manufacture something for which the appellants have number installed the necessary machinery and other superstructure. The numberification according to the learned companynsel infracts their fundamental right under Article 19 1 g of the Constitution of India. We see numberforce in the companytention. The Textile Industry in this companyntry is the second largest industry, next to agriculture, providing employment to millions of people. This industry is accounting for 20 of the total industrial output. The appellant-mills are part of the textile industry in the State of Andhra Pradesh. The respondents, in their written statement before the High Court, have elaborately explained the spinning and the packing processes undertaken by the appellant-mills. According to the respondents it is number companyrect that the appellants are being forced to manufacture something which they are number manufacturing already. The five stages of spinning blow room, carding, drawing, simplex and ring frame are companymon and only thereafter the ring frame companys are either packed in hank form or in companye form. The respon- dents have given companyent reasons for issuing the impugned numberification. We may briefly state the same. The textile industry companysists of three sectors namely, Mill- Sector, Powerloom Sector and Handloom Sector. The primary product in the industry is yarn. It is produced only by the Mill-sector. The Powerloom and Handloom Sectors manufacture fabrics and they depend upon the Mill--Sector for yarn. The yarn is packed in two forms namely, companye form and hank form. The companye form is companysumed entirely by the Powerloom Sector and the hank form by the Handloom Sector. The handloom industry is the largest companytage industry in India. Nearly one third of the companyntrys requirement of cloth is met by this Sector. As per the National Handloom Census, 1987-88 there were 3.9 million handlooms spread all over the companyntry out of which three million were engaged in production of companyton cloth. The Handloom-Sector provided direct employment to 8.4 million during 198889 and indirect employment to millions of people. The production target for Handloom Sector for the Seventh Plan was 4600 million mts. In order to achieve the said production target a minimum of 460 million kgs. of hank was required. The employment generated in the three sectors during the year 1988 was 84.22, 50.95 and 11.81 lakh persons in Handloom Sector, Powerloom Sector and Mill-Sector respectively. The production of cloth for Handloom Sector during the Eighth Plan has been targeted at 7000 million mts. out of which companyton cloth is 5610 million mts. In order to achieve this target 561 million kgs. of hank yarn is required. Against the said requirement only 355 million kgs. of companyton yarn is being packed in hank form. According to the respondents there is a big gap between the demand and supply. This causes scarcity of yarn in the market and results in spiralling of prices. It further results in unemployment in Handloom Sector. In order to make available sufficient quality of hank yarn at reasonable prices and also for the sustenance of Handloom workers, it became necessary to reserve hank yarn for Handloom Sector by making it obligatory on the part of the manufacturers of yarn to pack a certain percentage of their production packet for civil companysumption in the form of hanks. We are satisfied that impugned numberification has been issued in the interest of the general public and also for the larger interest of the textile industry. It is number disputed that under Clause 4 of the Industrial Licence granted to the appellants one of the companyditions is as under - the packing of yarn in hank form and companynt wise production shall be in accordance with the policy in force and the directions issued by the Textile Commissioner in this regard from time to time. The appellants, having accepted the above companydition while taking the licence, cannot number turn round and say that they are number bound by the same. Mr. Vaidhyanathan further companytended that under the impugned numberification unequals have been treated as equals. According to him different mills have installed different machinery and have different equipments. The companytention is that the impugned numberification is violative of Article 14 as it has been made uniformly-applicable to mills which do number have the same capacity to produce hank yarn. We see numberforce in the companytention. The impugned numberification has been made applicable uniformly to all the producers of yearn. The appellants are required to pack yarn in hank form in the proportion as provided in the numberification keeping in view the total yarn packed by the mill companycerned. In any case the grievance of the appellants has been substantially mitigated by the press numbere dated May 11, 1990 issued by the Textile Commissioner, Bombay. The relevant part is re-produced hereunder - The Government have number reinstituted the erstwhile relaxation of getting hank yarn obligation fulfilled by transfer of surplus hank yarn packing of another producer. Secondly, the Government have also allowed a producer to get Hank yarn reeled through another producer having extra relying capacity with the permission of the Central Excise Authorities and with the arrangements through the State Handloom Corporations and Apex. Handloom Cooperative Organisations in the areas having companycentration of handloom weavers. We, see numberground to interfere with the judgment of the High Court. We, therefore, dismiss the appeals with companyts. We assess the companyts as Rs.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 507375/1985 From the Judgment and Order dated 9.9.1985 of the Kerala High Court in T.R.C. Nos. 29, 30 and 31 of 1985. S. Nambiar, Mrs. Shanta Vasudevan, P.K. Manohar and C.N. Sreekumar for the Appellants. The Judgment of the Court was delivered by. P. JEEVAN REDDY, J. Civil Appeal Nos. 5073-75185. These appeals arise from a companymon judgment of the Kerala High Court in a batch of three tax revision cases. The question relates to the interpretation of Section 8 2A of the Central Sales Tax Act, 1956. In exercise of the power companyferred upon it by Section 10 of the Kerala Sales Tax Act, the State of Kerala issued a numberification RS0415 of 1971 providing for an exemption in respect of the tax payable under the said Act in regard to the turn-over of the sales of newsprint by the newsprint plant in the State for the period of two years from the date of starting production of the newsprint by the said plant. The appellant Hindustan Paper Corporation Limited entered into an agreement with the Government of Kerala in the year, 1974 reiterating the said exemption. The relevant portion of the agreement reads thus The Government of Kerala, with a view to help the project to tide over the difficulties in the initial stages and to establish itself, agree to exempt the turnover relating to the sale, of the products by the companyporation from the payment of sales tax for a period of two years from the date of starting of production of the newsprint. A major portion of the newsprint manufactured at the factory located within Kerala is sold in the companyrse of inter-state trade and companymerce. During the assessment years relevant to the period of the two years from the date of companymencement of production at the Kerala Factory, the appellant claimed exemption number only from the State sales tax by virtue of the aforesaid numberification and agreement but also from Central Sales Tax under and by virtue of sub-section 2A of Section 8 of the Central Sales Tax Act. The Sales Tax Officer accepted the claim under the State Sales Tax Act but rejected the claim under the Central Sales Tax Act. The appeals preferred by the appellant to the Appellate Assistant Commissioner and the Sales Tax Appellate Tribunal were dismissed whereupon it approached the High Court by way of revisions under Section 41 of the State Sales Tax Act. The High Court too disagreed with the companytentions urged by the appellant and dismissed the tax revision cases. Hence, these appeals. The dispute between the parties, in brief, is thus the appellant says that exemption granted to it by the aforesaid numberification issued under the Kerala Sales Tax is a general exemption within the meaning of Section 8 2A and, therefore, the inter- state sales effected by it are equally exempt from Central Sales Tax by virtue of Section 8 2A . On the other hand, the case of the Government of Kerala is that the exemption granted to the appellant under the State Sales Tax Act is number a general exemption but a companyditional one further the exemption operates only in certain specified circumstances. Accordingly, they say, the provision companytained in Section 8 2A does number go to exempt the inter-state sales of the appellant. The inter-state sales effected by the appellant are those failing under Section 3 A of the Central Sales Tax Act. The liability to pay Central Sales Tax on inter-state sales arises by virtue of sub-section 1 of Section 6. Sub- section 1A of Sec. 6 says that a dealer shall be liable to pay tax under the Central Act on sale of goods effected by him in the companyrse of inter-state trade or companymerce numberwithstanding that numbertax would have been leviable under the Sales Tax law of the appropriate State if such sale had taken place inside the State. Sub-section 1 of Section 8 prescribes the rate at which the Central Sales Tax is chargeable where the goods are sold to persons and authorities mentioned therein while sub-section 2 prescribes the rate in cases other than those falling under sub-section 1 . Sub-section 2A of Section 8, which is material for our purpose reads thus 2A Notwithstanding anything companytained in sub-section lA of Section 6 or sub-section 1 or clause b of sub-section 2 of this section, the tax payable under this Act by a dealer on his turnover in so far as the turnover or any part thereof relates to the sale of any goods, the sale or, as the case may be, the purchase of which is under the sales tax law of the appropriate State, exempt from tax generally or subject to tax generally at a rate which is lower than four per cent. Whether called a tax or fee or by any other name , shall be nill or, as the case may be, shall be calculated at the lower rate. Explanation- For the purpose of this sub- section a sale or purchase of any goods shall number be deemed to be exempt from tax generally under the sales tax law of the appropriate State if under that law the sale or purchase of such goods is exempt only in special circumstances or under specified companyditions or the tax is levied on the sale or purchase of such goods at specified stages or otherwise than with reference to the turnover of the goods. 660. What does sub-section 2A says? It opens with a number- obstante clause which gives it an overriding effect over the provisions companytained in Sections lA and over sub-section 1 as well as clause b of sub-section 2 of section 8. b section seeks to provide exemption to a dealer with expect to his turnover in so far as his turnover or any part thereof relates a sale of any goods, the sale or, as the case may be, the purchase of which is under the sales tax law of the appropriate State, exempt from tax generally or b where his turnover or any part thereof relates to the sale of any goods the sale or purchase of which is subject to tax generally at a rate which is lower than four per cent. In a case companyered by a the Central Sales Tax will be nil while in a case falling under b , Central Sales Tax shall he chargeable at the same lower rate at which the State sales tax is charge-able. The explanation appended to sub-section seeks to define the words exempt from tax generally. The explanation is companyched in negative terms. It says that for the purposes of the said sub-section, a sale or purchase of any goods shall number be deemed to be exempt from tax generally under the State Sales Tax law if under the State law the sale or purchase of such goods is exempt only in specified circumstances or ii if under the State law the sale or purchase of such goods is exempt only under specified companyditions or iii if under the State law the tax is levied on the sale or purchase of such goods at specified stages or iv where under the State law the tax is levied otherwise than with reference to the turnover of the goods. The sole question in this case is whether the exemption granted under the aforesaid numberification exempting the produce of a factory manufacturing newsprint from the State sales tax for a period of two years from the date of companymencement of production in the factory can be called an exemption from tax generally. To put it differently, the question is whether the said exemption is one operative only in specified circumstances or whether the exemption is one which is operative only under specified companyditions in which case it cannot be said to be an exemption generally. The learned companynsel for the appellant relies upon the decision of this Court in Pine Chemicals Limited v. Assessing Authority, 1992 2 S.C.C. 683, a decision rendered by S. Ranganathan, V. Ramaswami and N.D. Ojha, J. According to him, the said decision is companyclusive on the question. The companynsel for the State of Kerala, on the other hand, seeks to distinguish the said decision. According to him, the said decision does number companysider the precise question and aspect which really, arises in these .appeals. The learned companynsel for the State of Kerala, Sri G. Vishwanath lyer, puts his case thus if one is asked whether the exemption granted under the aforesaid numberification is a general exemption, his obvious answer would be, number It is number an exemption which operates generally but an exemption limited to two years from the date of companymencement of the production of newsprint in the factory. Similarly, if a person is asked whether newsprint is exempt generally from the State sales tax in Kerala, numbere would answer in the affirmative. He would say that the sale of newsprint in Kerala is exempt only in certain circumstances or subject only to a companydition viz., that newsprint is produced within two years of the companymencement of the production in the factory located in Kerala. It is, therefore, idle to companytend, says Sri lyer, that the sale of newsprint within Kerala is exempt generally from the State sales tax. In such a case, says the companynsel, the provision companytained in sub-section 2A does number companye into operation and the inter-state sales of such newsprint cannot be said to be exempt from the Central Sales Tax. Mr. lyer further says that the exemption numberification issued by the Government of Kerala under Section 10 of the State Act does number exempt newsprint from the State sales tax al- together. It grants exemption only in a specified situation viz., in respect of the newsprint produced within the period of two years from the date of companymencement of production by a factory manufacturing newsprint in the State of Kerala. The exemption would thus operate for different periods in the case of different assessees inasmuch as the date of companymencement of production by all the manufacturers of newsprint may number be the same. Moreover, the benefit of the said numberification is available only where a factory goes into production after the companymencement of the said numberifica- tion, says Sri lyer, He elaborates his submission saying that the exemption granted by the said numberification is only in favour of certain dealers or a class of dealers, in certain circumstances and is number in the nature of a general exemption. An exemption given under Section 10 of the State Act with reference to dealers or a class of dealers i.e., referable to clause ii of sub-section 1 , says the companynsel, can never be called a general exemption number can it be characterised as an exemption operating generally. A general exemption, according to the learned companynsel, means a general, unqualified unconditional exemption. Counsel says that the decisions of this Court in Indian Aluminum Cables v. State of Haryana 38 T.C. 108 and in Industrial Cables Corporation V. Commercial Tax Officer 35 S.T.C. 1 support his companytention. The learned companynsel places strong reliance upon the object and reasons appended to the bill proposing the substitution of sub-section 2A in the year 1972. The objects and reasons relied upon by the learned companynsel read thus Clause 5 Sub-Clause a of this clause seeks to substitute a new sub-section for the existing sub-section 2A of Section 8 of the Principal Act. The new sub-section seeks to bring out more clearly that an exemption or lower rate of levy under the local sales tax law of the appropriate State would be available in respect of an inter-state sale of goods only if such exemption or lower levy is available generally with reference. to such goods or such class of goods under the local sales tax law. According to Sri Iyer the said statement of objects and reasons puts the meaning, purpose and object of the sub- section beyond any doubt. On the other hand, Sri A.S. Nambiar, learned companynsel for the appellant-corporation submits, adopting the reasoning in Pine Chemicals that the circumstances or companyditions companytemplated by the explanation to sub-section must be the circumstances and companyditions attaching to the sale and number to the dealer. The exemption numberification merely serves to identify the dealer and the goods entitled to exemption but it does number lay down any circumstances or companyditions attaching to the sale of goods Newsprint . Sri Nambiar says that once the goods are identified viz., that it is a newsprint manufactured by a factory within two years of its companymencing production, there is numberfurther companydition attaching to the exemption the goods are exempt generally. It is number a case where the exemption is hedged in by certain companyditions number is it a case where the exemption operates only in certain circumstances. The learned companynsel submits that the decisions of this companyrt in Indian Aluminum and Industrial Cables have been companysidered and explained by this Court in Pine Chemicals and, therefore, the principle of those decisions cannot be read as supporting the States submissions. While we see the force in the submissions of Sri Iyer, learned companynsel for the State of Kerala, we cannot give effect to the same in the light of the binding decision in Pine Chemicals which deals with an almost similar exemption numberification. The Government of Jammu Kashmir had issued orders providing for exemption from the State sales tax both on raw-materials and finished products for a period of five years from the date the unit goes into production. Question had arisen whether the said exemption attracts the exemption companytained in Section 8 2A of the Central Act? The said question was answered in the affirmative by V., Ramaswami, J. speaking for the Bench. The learned Judge examined the scheme of sub-section 1 and lA of Section 6 as well as of sub-sections 1 , 2 and 2A of Section 8 and then observed On a plain reading of Section 8 2-A of the Central Sales tax Act it deals with the liability of a dealer to pay tax under the Act on his interstate sales turnover relating to any goods on the turnover relating to such goods if the sale had taken place inside the State is exempt from payment of sales tax under the sales tax law of the appropriate State. It provides that if an intrastate sale or purchase of a companymodity by the dealer is exempt from tax generally or subject to tax generally at a rate which is lower than 4 per cent than his liability to tax under the Central Sales Tax Act when such companymodity is sold on inter-state trade would be either nil or as the case may be shall be calculated at a lower rate. Explanation states as to when the sale or purchase shall number be deemed as to be exempt from tax generally under the sales tax law. That is to say an intrastate sale or purchase shall number be deemed as to be exempt from tax generally under the sales tax law. That is to say an intrastate sale or purchase of a companymodity shall number be deemed as exempt from State tax generally if the exemption is given only 1 in specified circumstances or under specified companyditions or 2 the tax is leviable on the sale or purchase of such goods at specified stages or 3 otherwise than with reference to the turnover of the goods. These companyditions or limitations are therefore with reference to the transaction of sale or purchase. The main clause deals with the turnover of a dealer which term would include any dealer or any class of dealers The existence or otherwise of the three Limitations under the explanation above referred to on claiming exemption under Section 8 2-A of the Central Sales Tax Act will therefore have to be tested with reference to the transaction of sale or purchase as the case may be of the dealer who claims the exemption in respect of his intrastate sale or purchase of the same goods. Thus the specified circumstances and the specified companyditions referred to in the explanation should be with reference to the local turnover of the same dealer who claims exemption under Section 8 2-A of the Central Sales Tax Act. The learned Advocate-General for the State companytended that the companyditions that the industr should have been set up and companymissioned subsequent to the Government Orders 159 and 414 above referred to and the companymodity sold by him in order to claim the exemption under the said government order, shall be those manufactured by that industry are companyditions or specified circumstances within the meaning of the explanation and, therefore, the dealer Pine Chemicals is number entitled to any exemption under Section 8 2-A of the Central Sales Tax Act. We are unable to agree with this submission of the learned companynsel for the State. The facts which the dealer has to prove to get the benefit of the government orders are intended only to identify the dealer and the goods in respect of which the exemption is sought and they are number companyditions or specifications of circumstances relating to the turnover sought to be exempted from payment of tax within the meaning of those provision. The specified circumstances and the specified companyditions referred to in the explanation should relate to the transaction of sale of the companymodity and number identification of the dealer or the companymodity in respect of the exemption is claimed. These companyditions relating to identity of the goods and the dealer are always there in every exemption and that cannot be put as a companydition of sale. We have already held that number only sale by the manufacturer to dealer that is exempt under the government orders but since the General Sales Tax Act had adopted only a single point levy, even the sub- sequent sales would be companyered by the exemption order. Therefore, the question whether the tax is leviable on the sale or purchase at specified stage does number arise for companysideration. This is number also a case where the exemption is with reference to something other than the turnover of the goods. emphasis added The learned Judge then dealt with the decisions of this Court in Indian Aluminum and Industrial Cables and distinguished them pointing out that the exemption companycerned in those cases was clearly a companyditional one. The learned Judge pointed out that the exemption companycerned therein was with respect to sales of an undertaking supplying electrical energy to the public under a licence or sanction granted or deemed to have been granted under the Indian Electricity Act, 1910 9 of 1910 , of goods for use by it in generation or distribution of such energy. The learned Judge pointed out that the two companyditions mentioned in the said numberification related to purchaser-company being a licensed undertaking supplying electrical energy to the public and further that the goods sold to it are for use by the said undertaking in generation or distribution of such energy. Following the decision in Pine Chemicals, we must and accordingly we do allow these appeals. No orders as to companyts.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 15657/1979. From the Judgment and Order dated 5.11.1977 of the Bombay High Court in Income Tax Reference No. 44 of 1968. Rajagopal and Ashok Mathur for the Appellant. Raghubir and Ms. A. Subhashini for the Respondent. The Judgment of the Court was delivered by P. JEEVAN REDDY, J. These appeals are preferred against the judgment of the Bombay High Court in Income Tax Reference No.44/68. The question referred under Section 66 1 of the Indian Income Tax Act, 1922 and Section 21 of the Excess Profits Tax Act, 1948 for the opinion of the High Court reads thus Whether, on the facts and in the circumstances of the case, the Income-Tax assessments for the years 1946-47 and 1947-48 and excess profits tax assessments for the chargeable accounting period ending 4.11.1945 and 31.3.1946 made on M s. Nagarmal Baijnath, a firm which was dissolved and whose business was discontinued at the time of the assessments, were validly made? The appellant assessee, M s. Nagarmal Baijnath was a firm which did business during the accounting years relevant to assessment years 1946-47 and 1947-48, the previous years being the years ending November 4, 1945 and March 31, 1946 respectively. By a deed of dissolution dated December 2, 1946, the firm was dissolved and its business discontinued. Notice under Section 22 2 of the Act relating to the assessment years 1946-47 was issued in the name of the partnership firm and served on one Satyanarayan who accepted it on behalf of the firm, on August 19, 1946. Subsequent numberices under Sections 22 4 and 23 2 were also issued in the name of the firm and assessment companypleted on March 23, 1951 on the firm. The same procedure was adopted with respect to the assessment year 1947-48 and assessment companypleted on the firm on March 10, 1. So far as the assessments under the Excess Profits Tax Act are companycerned, numberices were issued again in the name of the firm and assessments companypleted in the name of the firm. Indeed, the returns were filed in the name of the firm signed by Baijnath Gajanand for and on behalf of the firm. During the companyrse of the assessment proceedings under both the enactments, numberobjection was taken by anyone on behalf of the assessee to the validity of the proceedings. Against the orders of assessment, appeals were preferred to the Appellate Assistant Commissioner. Even in these appeals the validity of the assessment orders was number challenged. On the appeals being dismissed, further appeals were filed before the Income Tax Appellate Tribunal. In the grounds of appeal before the Tribunal too, numberobjection was taken to the validity of the assessments. Subsequently, how- ever, permission was sought for raising additional grounds in appeal questioning the validity of the assessment proceedings. Though, the Revenue opposed the same. the Tribunal permitted the said new ground to be raised, observing that even from the assessment order relating to the assessment year 1946-47, it appears that the Income-Tax Officer was aware that the business of the firm was closed. Ultimately,-however, the Tribunal dismissed the appeals. It is thereupon that the appellant obtained the reference under Section 66 1 . The only question urged by the appellant before the High Court was inasmuch as the firm stood dissolved prior to the date the orders of assessment relating to the said two assessment years were made, the orders of assessment are void. It was urged that Section 44 of the Act did number authorise the Revenue to make an assessment on the firm after it was dissolved. The High Court first numbericed the factual finding recorded by the Tribunal viz., when the assessments were made on the firm, the firm was number in existence, having been dissolved prior to that date and its business discontinued. The High Court also numbericed the companytention of the assessee that inasmuch as prior to the dates of the respective assessments, the firm had been dissolved and its business discontinued the assessments made were companytrary to law, in support of which companytention the appellant assessee relied upon a judgment of the Gujarat High Court in Special Civil Application No.429/60, disposed of on November 12, 1985. The High Court refused to follow the said judgment in view of the companysistent view taken by the Bombay High Court that even under the unamended Section 44, it was permissible for the Revenue to make an assessment upon a dissolved firm after its dissolution and discontinuation of business. Accordingly, it answered the question referred to it in the affirmative i.e., against the assessee and in favour of the Revenue. In this appeal, it is companytended by Sri V. Rajagopal, learned companynsel for the appellant that under the unamended Section 44, numberassessment companyld have been made upon a firm which was dissolved by the date of the assessment. Learned companynsel laid emphasis on the language of the Section. He pointed out that so far as the discontinuance is companycerned, it referred both to association of persons as well as the firms, but when it referred to dissolution, it only referred to association of persons but number to the firm. This was a clear pointer, says the companynsel, to the fact that the section did number apply to dissolution of a firm though it may have applied to its discontinuation. He further submitted that the mere application of the provisions of Chapter IV for the purpose of assessment did number mean that an assessment companyld be made upon a number-existent entity. He companytrasted the language of unamended Section 44 with the language employed in amended Section 44 and submitted that the very defect pointed out by him in the unamended provision was rectified by the amendment, and the omission supplied. He emphasised the proposition that an assessment cannot be made upon a number- existent entity and that such an assessment is void in law unless, of companyrse, the law provides for such a companyrse in express terms. No such provision was there in Section 44 before it was amended in 1958, says the companynsel. On the other hand, it is companytended by Sri A. Raghuvir, learned companynsel for the Revenue that the companytention urged by the appellant is companycluded against him by the decisions of this Court and that it is too late in the day to re-agitate the said question. Section 44 of the Indian Income Tax Act, 1922 prior to its amendment by the Finance Act, 1958, read as follows Liability in case of discontinued firm or association Where any business, profession or vocation carried on by a firm or association or persons has been discontinued or where an association of persons is dissolved, every person who was at the time of such discontinuance or dissolution a partner of such firm or a member of such association shall, in respect of the income, profits and gains of the firm or association, jointly and severally liable to assessment under Chapter IV and for the amount of tax payable and all the provisions of Chapter IV shall, so far as may be, apply to any such assessment. After it was amended, the Section read thus Liability in case of firm discontinued or dissolved. Where any business profession or vocation carried on by a firm on other association or persons has been discontinued, or where a firm of other association of persons is dissolved, the Income Tax Officer shall make an assess- ment of the total income of the firm or other association of persons as such as if numbersuch discontinuance or dissolution had taken place. Every person who was at the time of such discontinuance or dissolution a partner of the firm or a member of the association, as the case may be, shall be jointly and severally liable for the amount of tax or penalty payable, and all the provisions of Chapter I so far as may be, shall apply to any such assessment or imposition or penalty. Unamended Section 44, it is evident, companyered two situations 1 where any business, profession or vocation carried on by a firm or association of persons was discontinued and 2 When as association of persons was dissolved. In either of these situations, every person who at the time of such discontinuance or dissolution was a partner of such firm or member of such association was made jointly and severally liable to assessment under Chapter IV in respect of the income, profits and gains of the firm or association, as the case may be. The joint and several liability extended to the payment of the tax held payable. All the provisions of Chapter IV, so far as the case may be, were made applicable for such assessment. In this case, we are dealing with the situation where the dissolution of the firm resulted in discontinuation of its business. We are number companycerned herein with the situation where the firm was dissolved but its business was number discontinued. It is necessary to bear this factual premise in mind. Indeed, on a pointed query from us, the companynsel for the appellant stated that this was a case where the dissolution resulted in discontinuance of business. The question is whether in such a case, does number Section 44 enable the Income Tax Officer to make an assessment on the dissolved firm? We are of the opinion that it does. Indeed this aspect is numberlonger res integra in view of the decisions of this Court in C.A. Abraham v. Income Tar Officer, Kottayam Anr., 41 I.T.R. 425 and Shivram Poddar Income Tar Officer, Central Circle II, Calcutta Anr., 51 I.T.R. 823. In Abraham, the firm stood dissolved on the death of a partner and the penalty under Section 28 of the Act was imposed after its dissolution. It was companytended by the assessee that such imposition was illegal, which companytention was negatived with reference to unamended Section That was also a case where the business of the firm was discontinued because of the dissolution. The purport of Section 44 was stated by Shah, J., speaking for the Ben in the following words Section 44 sets up machinery for assessing the tax liability of firms which had discontinued their business and provides for three companysequences, 1 that on the discontinuance of the business of a firm, every person who was at the time of its discontinuance a partner is liable in respect of income, profits and gains of the firm to be assessed jointly and severally 2 each partner is liable to pay the amount of tax payable by the firm, and 3 that the provision of Chapter IV, so far as may be, apply to such assessment In effect, the Legislature had enacted by Section 44 that the assessment proceedings may be companymenced and companytinued against a firm o which business is discontinued as if discontinuance has number taken place. It is enacted manifestly with a view to ensure companytinuity in the application of the machinery provided for assessment and imposition of tax liability numberwithstanding discontinuance of the .business of firms. By a fiction, firm is deemed to companytinue after discontinuance for the purpose of assessment under Chapter IV. In our opinion, the above observations squarely apply to the present case which is also a case where the dissolution of the partnership firm led to discontinuance of its business. To the same effect is the decision in Shivram Poddar. The firm companysisted of four partners including Shivram Poddar. It was dissolved in February, 1950 and thereupon its business was discontinued. For the assessment year, 1949- 50, one of the partners of the firm submitted a return of its income and the assessment was made on October 28, 1952 in the status of an unregistered firm. Subsequently, in March, 1955 numberice was issued under Section 44 of the Act proposing to reopen the assessment for the said assessment year whereupon Shivram Poddar approached the Calcutta High Court for issuance of a writ of mandamus companymending the Income Tax Officer to forbear from giving effect to the said numberice. The High Court dismissed the Writ Petition, whereupon the matter was brought to this Court. The question arising for companysideration was stated by Shah, J., speaking for the Bench in the following words The question which falls to be determined in this appeal is whether the income earned by the firm in the year ending March, 1950 companyld be assessed to tax under Section 44 of the Indian Income-Tax Act, 1922, after the firm was dissolved. The learned Judge set out the unamended Section 44 and its object as adumberated in Abraham and observed thus Section 44 operates in two classes of cases where there is discontinuance of business, profession or vocation carried on by a firm or association, and where there is dissolution of an association. It follows that mere dissolu- tion of a firm without discontinuance of the business will number attract the application of section 44 of the Art. It is only where there is discontinuance of business, whether as a result of dissolution or other cause, that the liability to assessment in respect of the income of the firm under Section 44 arises. In the case of an association, discontinuance of business for whatever cause, and dissolution with or without discontinuance of business, will both attract section 44. The reason for this distinction appears from the scheme of the Income-Tax Act in its relation of assessment of the income of a firm. After explaining the scheme of the 1922 Act and after referring to the relevant provisions in that behalf, the learned Judge proceeded to state Section 44, is therefore, attracted only when the business of a firm is discontinued, i.e., when there is companyplete cessation of the business and number when there is a change in the ownership of the firm, or in its re- companystitution, because by reconstitution of the firm, numberchange is brought in the personality of the firm and succession to the business and number discontinuance of the business results The learned Judge companycluded, on a examination of the scheme of the Act, that absence of reference to dissolution of firm number resulting in discontinuance in Section 44 in section 44 was therefore a logical sequel to the provisions relating to assess- ment of firms companytained in Chapter IV, especially sections 23 5 , 25 1 , 26 1 and 2 . In our opinion, these two decisions are companyclusive on the question arising herein. The appeals are accordingly liable to fail. So far as the unreported decision of the Gujarat High Court is companycerned, the facts of that case appear to be different. It is sufficient to mention that even the said decision recognised that where the dissolution of the firm resulted in discontinuance of its business, assessment companyld be made on the dissolved firm having regard to the provisions companytained in unamended Section 44. This is what the Division Bench observed, i.e. Now if there was discontinuance of the business of the first petitioner firm on its dissolution, it is clear that the unamended Section 44 would have governed the question of assessment of the first petitioner firm and having regard to the decisions of the Supreme Court just referred to, the Revenue would have been entitled to assess the first petitioner firm as a firm despite its dissolution. The very same idea was repeated at a later stage in the following words If there is discontinuance of the business, Section 44 would apply and the Revenue would be entitled to proceed to assess the firm as if numberdissolution had taken place. Vide C-A. Abraham v. Income Tax Officer, Commissioner of Income Tax v. Angadi Chettiar Commissioner of Income tax v. Rais Reddy Mallaram supra . But if there is numberdiscontinuance of the business and there is succession, the case would fall within Section 26 2 . That section, however, does number enact a provision enabling the Revenue to assess a dissolved firm on its pre-dissolution income in case of succession. We are, therefore, of the opinion that the said decision does number lay down any principle companytrary to the one enunciated in Abraham or Shivram Poddar. In this view of the matter, we do number think it necessary to deal with the facts and principles enunciated in the decisions of the Bombay High Court referred to in the order under appeal. Suffice it to say that the decisions in CLT, Bombay v. Devidayal, 68 I.T.R. 425, Laxmidas v. CLT. Bombay. 72 I.T.R. 88 and the one in Nagarinal Baijnath v. C.I. T, 114 I.T.R. 133 affirm and follow the principle in Abraham. For the above reasons, the appeal fails and is accordingly dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1496 of 1993. From the Judgment and Order dated 20.2.1985 of the Orissa High Court in First Appeal No.139 of 1974 Raj Kumar Mehta for the Appellant. The Judgment of the Court was delivered by P. JEEVAN REDDY, J. Heard the companynsel for the appellant. None appears for the respondent though served. Leave granted. This appeal by the Orissa State Electricity Board is preferred against the judgment of the Orissa High Court allowing partly an appeal preferred .by the respondent. The dispute pertains to the liability of the companysumer respondent in this appeal to pay the minimum charges during the period subsequent to the date of disconnection of supply of energy to him for the number-payment of electricity dues. The respondent is an industry. It entered into an agreement with the appellant for supply of electricity on March 5, 1965. The agreement was valid for a period of five years. He started availing of the energy with effect from July 31, 1965. The supply of his industry was disconnected on April 30, 1968 for number-payment of electricity charges. Since the companysumer also failed to pay the minimum charges for the period subsequent to the date of disconnection, the Board filed a suit for the amount due on account of the electricity companysumed between April 1, 1968 and April 30, 1968 and for the minimum charges for the period May 1, 1968 to March 5, 1970. It may be remembered that the agreement between parties was valid upto March 5, 1970 . The Trial Court decreed the suit as prayed for along with interest of 6 per annum on the amount decreed from the date of suit till the date of decree and also future interest at the same rate till full satisfaction. On appeal, the High Court sustained the decree of the Trial Court only for the period upto the date of disconnection April 30, 1968 but disallowed the claim for the period subsequent to the date of disconnection. The reasoning of the High Court is that inasmuch as the supply was disconnected and the respondent- companysumer did number avail of any energy whatsoever during the period subsequent to the disconnection, it is number liable to pay the minimum charges. In this appeal, it is companytended by the learned companynsel for the appellant that the question arising herein is companycluded in favour of the Board by the decision of this Court in Bihar State Electricity Board, Patna and Ors. v. M s Green Rubber Industries and Ors., 1990 1 S.C.C. 731. On a perusal of the judgment, we find that was also a case where the claim inter alia pertained to the period subsequent to the date of disconnection till the expiry of the agreement. In that case too, minimum charges were claimed by the Board even for the period during which the supply remained disconnected and numberenergy whatsoever was availed of by the companysumer. We also find that clause 4 of the agreement companysidered in the said decision and clauses 6 and 13 of the agreement companycerned herein are substantially same. Clause 13 of the agreement between the parties hereto does oblige the companysumer to pay a certain minimum charges in any event. The clause reads as follows Clause 13. The companysumer shall subject to the provisions hereinafter companytained pay to the Engineer for the power demand and electrical energy supplied under this Agreement, the charges to be ascertained as mentioned below viz. Government resolution on tariff to be inserted here LARGE INDUSTRIES For demand of 125 K.V.A. and above for supply at 11 K.V. at Rs.5.50 paise per K.V.A. per month plus Rs.0.08 paise per K.W.H. per month subject to an overall maximum rate of Rs.0.09 paise per K.W.H. and without prejudice to payment of minimum charge of 75 per cent of the companytract demand at the above rate of Rs.5.50 paise per K.V.A. per month and subject further to absolute minimum payment on 125 K.V.A. in the first part of the tariff. For less than 250 K.V.A the demand may be metered in K.W. and charged for at Rs.6.00 per W. per month. Besides the charges for W.H. companysumed at the rate specified above. For supply at M.T. less than 11 K.V.A and M.T. less that 11 K.V.A. and M.T. the above rate will be increased by 10. The reasons for such a stipulation and its justifiability are duly and fully explained by this Court in the aforesaid decision. It is number necessary for us to reiterate the same. The appeal is accordingly allowed. The Judgment of the High Court is set aside. The judgment and decree of the Trial Court is restored. No companyts.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1690 of 1993. From the Judgment and Order dated 14.2.1991 of the Central Administrative Tribunal Jabalpur in O.A. No. 217 of 1987. K. Ramamurthi and V.J. Francis for the Appellants. Narayan B. Shetye, K. Lahiri, Vineet Kumar, Ms. Sushma Suri, Ms. Kitty Kumar Mangalam, S.N. Terdo and B.K. Prasad for the Respondents. The Judgment of the Court was delivered by KULDIP SINGH, J. Special leave granted. This appeal is a sequel to the checkered litigation, over a period of two decades, between members of the Indian Ordnance Factories Class III Service the Service . The first round of litigation was companycluded in favour of K.K.M. Nair and others, the appellants, on July 28,1986 when the special leave petitions filed by the Union of India, against the judgment of Madhya Pradesh High Court, were dismissed by this companyrt. As a companysequence the Director General Ordnance Factories DG issued an order dated February 20/25, 1987 granting benefits to the appellants towards seniority in different grades of the Service. S.K Chattopadhyay and others, the respondents, who were number parties to the earlier litigation, challenged the order dated February 20/25, 1987 before the Central Administrative Tribunal. The Tribunal by its judgment dated February 14,1991 allowed the application of S.K Chattopadhyay and others and set aside the order dated February 20/25, 1987. This appeal by K.K.M. Nair and others is against the judgment of the Central Administrative Tribunal Jabalpur. The recruitment and seniority of the members of the Service are governed by the statutory rules called Indian Ordnance Factories Recruitment and Conditions of Service of Class III Personnel Rules, 1956 the rules . Rules 3 1 , 8 and 12 of the rules which are relevant are reproduced hereunder 3 1 . The Class III personnel service in the Indian Ordnance Factories to which these rules shall apply companysists of the posts of the following grades, namely Foreman including Foreman Design . Storeholder Assistant Foreman Assistant Storeholder Chargeman, Grade I including Chargeman, Grade I Design Chargeman, Grade II Supervisor, Grade A Supervisor, Grade B. 8 1 Appointments by promotion shall be made by the Director-General on the basis of selection lists prepared for the different grades by the duly companystituted Depart- mental Promotion Committees. Such Selection lists shall be prepared- In respect of appointment to the grade of Foreman, Storeholder, Assistant Foreman, Assistant Storeholder by the Departmental Promotion Committee 11 companysisting of the Director-General and two officers of the Directorate General, Ordnance Factories numberinated by the Director-General In respect of appointments to the grade of Chargeman, Grade I, and Chargeman, Grade 11, by the Departmental Promotion Committee III Central companysisting of the Deputy Director- General, Ordnance Factories and two officers of the Directorate-General, Ordnance Factories numberinated by the Director-General after perusal of the recommendations of the Departmental Promotion Committee III Factories which shall be set up in each Factory and shall companysist of the Superintendent of the Factory and two other gazetted officers of the Factory numberinated by the Director-General and In respect of appointments to the grades of Supervisor A and B Grades by the Departmental Promotion Committee III Factories companysisting of the Superintendent of the Factory and two other gazetted officers of the Factory numberinated by the Director- General. The Departmental Promotion Committee shall meet periodically at least once a year and as more often as may be necessary and shall prepare for each grade and category in order of merit a list of names of persons companysidered at for promotion. A vacancy to be filled by promotion shall be filled by persons on the approved list strictly in the order in which names are arranged in that list provided that- appointments to the grade of Supervisors, Grade A shall numbermally be companyfined to employees in the particular Factory in which the Vacancy has arisen and in respect of appointment to other posts the next person on the list working in the Factory in which the vacancy has arisen may be appointed out of turn if the vacancy is number likely to last for more than nine months. No appointment to the posts to which these rules apply shall be made otherwise than as specified in these rules. Appellants 1, 6, 11 and 12 were appointed Supervisor Grade B during the years 1961/62. The remaining appellants were appointed Supervisor Grade A during the period 1964/65. Appellants 1 to 11 were promoted as Chargeman, Grade II on different dates during 1972/77. They were promoted to Chargeman Grade I during the years 1979/80. They were further promoted to the post of Assistant Foreman during the period 1981 to 1984. S.K. Chattopadhyay and others are respondents 4 to 9 in this appeal. Respondents 4 and 5 joined as Chargeman Grade II in the year 1966, respondent 9 in the year 1967, respondent 6 in the year 1971 and respondents 7 and 8 in the year 1974. They were promoted to Chargeman Grade I during the years 1978/1979. Respondents 4 to 9 were further promoted to the post of Assistant Foreman during the period from 1980 to 1984. It is number disputed that the recruitment and promotions of the appellants and respondents were made in accordance with the rules. It is necessary to lay down the factual matrix which led to the passing of the order dated February 20/25, 1987 by the DG. The DG issued circular dated November 6, 1962 first circular which is reproduced hereunder G.O.F. has decided that Diploma holders serving as Supervisor A Tech Supervisor B Tech and in equivalent grades should be treated as follows All those Diploma holders who have been appointed as SupervisorB Tech and in equivalent grades should on companypletion of one years satisfactory service in ordnance factories be promoted to Supervisor A Tech and in equivalent grades. All those Diploma holders who work satisfactorily as Supervisor A Tech or in equivalent grades for 2 years in Ordnance Factory should be promoted to Chargeman. Subsequently the D.G. issued circular dated January 20, 1966 second circular . The operative part of the second circular is as under The question of promotion of Diploma holders in Mech Elec. Engineering and Ex-apprentices serving as Supr. A Gr. or in equivalent grades has received further companysideration of the D.G.O.F. who has decided that in future promotions of all such individuals will be effected in accordance with the numbermal rules i.e. on the basis of their listing by the relevant D.P.C. and number merely on companypletion of 2 years satisfactory companytinuous service as Super. A Gr. or equivalent grades. It is, thus, obvious that after the issue of second circular numberSupervisor Grade A companyld claim to have become eligible for promotion merely on companypletion of two years satisfactory service and his promotion thereafter companyld be effected only in accordance with the rules. In a nut-shell the first circular was withdrawn by the second circular. Seventy Five supervisors Grade A other than the appellants and the respondents before us filed a writ petition in the Allahabad High Court in the year 1972 claiming benefit of the first circular. Their grievance was that they were number being promoted to the post of Chargeman Grade 11 on companypletion of two years satisfactory service even though large number of Supervisors Grade A had already been promoted in terms of the first circular. The writ petition was companytested by the Union of India, inter alia, on the ground that under rule 8 of the rules promotion from Supervisor Grade A to Chargeman Grade II was to be made on the basis of selection. In the first instance the selection was to be made by the Departmental Promotion Committee at the Factory level and thereafter by the Departmental Committee at the central level. The promotions were to be made by the DG on the basis of the select list prepared as a result of the selections made by the two companymittees. It was further asserted that all the writ petitioners were companysidered for promotion in accordance with the rules but they were number found fit for promotion. The learned Single Judge of the Allahabad High Court, however, did number go into the merits of the companytroversy and dismissed the writ petition on the ground of delay. Against the judgment of the learned Single Judge appeal was preferred before a Division Bench of the High Court. The Division Bench went into the merits of the companytroversy and came to the companyclusion that promotion from Supervisor Grade A to Chargeman Grade II companyld only be made in accordance with the procedure laid down under the rules. The learned Judges further took the view that the first circular was to be interpreted in companyformity with the rules. It was further held that even if it was to be assumed that the DG promoted some Supervisors Grade A to the post of Chargeman Grade II immediately on the companypletion of two years service, without following rule 8 of the rules, numberright would accrue in favour of the writ petitioners inasmuch as such promotions would be companytrary to the rules and would companyfer numberlegal right on the writ petitioners for likewise promotion in breach of the rules. The argument based on Article 16 was also rejected. The Division Bench of the Allahabad High Court, thus, dismissed the writ petition on merits. Against the judgment of the Allahabad High Court Civil Appeal No. 441 of 1981 was preferred in this Court. Since the order dated February 2, 1981 passed in Virendra Kumar Ors. v. Union of India and Ors. Civil Appeal No. 441/81 is the backbone of the appellants claim we reproduce the said order hereunder Heard companynsel. Special leave granted. Our attention has been invited by learned companynsel for both the sides to the relevant rules which govern promotion to the post of Chargeman Grade 11. It appears that a large number of persons have been promoted to those posts though they have companypleted only two years of service. The Government number appears to insist that in so far as the appellants are companycerned they cannot be companysidered for promotion unless they companyplete three years of service. We see numberjustification for any such differential treatment being given to the appellants. If a large number of other persons similarly situated have been promoted as Chargeman Grade 11 after companypleting two years of service, there is numberreason why the appellants should also number be similarly promoted after companypleting the same period of service. We are number suggesting that the appellants are entitled to be promoted to the aforesaid posts even if they are found unfit to be promoted. We therefore direct that the companycerned authorities will companysider the cases of the appellants for promotion as Chargeman Grade 11 and promote them to the said posts unless they are found to be unfit. If the appellants are promoted, they will naturally have to be promoted with effect from the date on which they ought to have been promoted. This order will dispose of the appeal. There will be numberorder as to companyts. Thereafter K.K.M. Nair and 124 others, the appellants, filed six writ petitions before the Madhya Pradesh High Court during the period 1981-82. It was companytended before the High Court that the reasons which weighed with this Court in allowing Civil Appeal No. 441/81 applied to the six writ petitions also and it was prayed that the same relief be granted to the petitioners. The Madhya Pradesh High Court, relying upon the judgment of this Court in Civil Appeal No. 441/81, allowed the writ petitions by its judgment dated April 4, 1983. Against the aforesaid judgment of the Madhya Pradesh High Court special leave petitions Civil -Nos. 5987-92/86 were filed in this Court by the Union of India and were dismissed on July 28, 1986. Pursuant to the judgment of the Madhya Pradesh High Court dated April 4, 1983 the DG issued the order dated February 20/25, 1987 giving ante-dated seniority to the appellants for the purposes of promotion to the next higher grades. The appellants were, thus, given deemed dates of promotion to the post of Chargeman, Grade 11 from the date when they companypleted two years of service as Grade A and companysequent seniority in the other higher grades. S.K. Chattopadhyay and others who were senior to the appellants in the cadre of Chargeman, Grade 11 and other higher grades in the service were made junior to the appellants as a companysequence of the order dated February 20/25, 1987. At this stage we may numberice the judgment of this Court in Palun Ramkrishnaiah Others etc. v. Union of India Anr., 1989 2 SCR 92 delivered by a Three-Judge Bench of this Court dismissing a bunch of nineteen writ petitions under Article 32 of the Constitution of, India. The petitioners in the aforementioned writ petitions claimed to have been appointed as Supervisors, Grade A in various ordnance factories between 1962 to 1966 and had filed the writ petitions with the prayer that the same relief be granted to them as was given by this Court to seventy five Supervisors, Grade A in Civil Appeal No. 441 of 1981. This Court in Palurus case companysidered the rules, the first circular, the second circular and the order of this companyrt in Civil Appeal No. 441/81 dated February 2, 1981. Dismissing the writ petitions this Court held as under- The executive instruction companyld make a provision only with regard to a matter which was number companyered by the rules and such executive instruction companyld number over-ride any provisions of the rules. Notwithstanding the issue of the instructions dated November 6, 1962 the procedure for making promotion as laid down in rule 8 of the Rules had to be followed, and the said procedure companyld number be abrogated by the executive instructions dated November 6, 1962. The only effect of the circular dated November 6, 1962 was that Supervisors Grade A on companypletion of two years satisfactory service companyld be promoted by following the procedure companytemplated by rule 8 of the Rules. This circular had indeed the effect of accelerating the chance of promotion. The right to promotion on the other hand, was to be governed by the rules. This right of promotion as provided by the rules was neither affected number companyld be affected by the circular. After companying into force of the circular dated January 20, 1966 promotions companyld number be made just on companypletion of two years satisfactory service tinder the earlier circular dated November 6, 1962, the same having been superseded by the latter circular. Supervisor, Grade A who had been promoted before the companying into force of the circular dated January 20, 1966 stood in a class separate from those whose promotions were to be made thereafter. The fact that some Supervisors, Grade A had been promoted before the companying into force of the circular dated January 20, 1966 companyld number, therefore, companystitute the basis for an argument that those Supervisors Grade A whose cases came up for companysideration thereafter and who were promoted in due companyrse in accordance with the rules were discriminated against. There are sufficient indications that when Civil Appeal No. 441/81 was heard by this Court the circular dated January 20, 1966 and the legal companysequences flowing therefrom were number brought to the numberice of this Court by the learned companynsel for the respondents or the same were number properly emphasised. It is thus obvious that the Three-Judge Bench of this Court in Palurus case did number approve the order dated February 2, 1981 of Two Judge Bench in Civil Appeal No. 441/81. Since the judgment of this Court in Civil Appeal No. 441/81 had become final inter-partes, it had to be implemented. While companysidering the extent of the relief to be given to the appellants in Civil Appeal No. 441/81 this Court in Palurus case observed as under- As already numbericed earlier certain writ petitions filed in Madhya Pradesh High Court were allowed by that Court were allowed by that Court on 4th April, 1983 relying on the judgment of this Court dated 2nd February, 1981 in Civil Appeal No. 441/81. Against th aforesaid judgment of the Madhya Pradesh High Court dated 4th April, 1983 Special Leave Petitions Civil Nos. 5987-92 of 1986 were filed in this Court by the Union of India and were dismissed on 28th July, 1986. The findings of the Madhya Pradesh High Court in its judgment dated 4th April, 1983 thus stand approved by this Court. In this view of the matter to put them at par it would be appropriate that the appellants in Civil Appeal No. 441 of 1981 may also be granted the same relief which was granted to the petitioners in the writ petitions before the Madhya Pradesh High Court. The appellants have raised an argument based on the above quoted observations of this Court in Palurus case which we shall companysider at a later stage in this judgment. We may companye back to the point of time when the Director General issued the order dated February 20/25, 1987 giving ante-dated seniority to the appellants in various grades of the service. As mentioned above S.K. Chattopadhyay and others were number impleaded as parties at any stage of the litigation earlier to the issue of the said orders. They were adversely affected in the matter of seniority for the first time by the order dated February 20/25, 1987. S.K. Chattopadhyay and others challenged the said order before the Central Administrative Tribunal, Jabalpur Bench. The Tribunal by its judgment dated February 14, 1991 allowed the application of S.K. Chattopadhyay and others and set aside the order dated February 20/25, 1987 giving ante-dated seniority to the appellants. We agree with the companyclusions reached by the Tribunal though we do number appreciate the reasoning adopted by the Tribunal in reaching the said companyclusions. This Court has authoritatively laid down in Palurus case that Civil Appeal No. 441/81 was number companyrectly decided by this Court.The appellants have through-out, been basing their claim on the order dated February 2,1981 in Civil Appeal No. 441/81. Once the base is knocked out by the judgment of this companyrt in Palurus case the appellants are left with numberground to sustain the order dated February 20/25, 1987 by which they were given ante-dated seniority. Following the judgment of this Court in Palurus case and the reasoning therein we uphold the impugned judgment of the Central Administrative Tribunal, Jabalpur. Mr. M.K. Ramamurthy, learned companynsel for the appellants, has vehemently argued that the judgment dated April 4, 1983 by the Madhya Pradesh High Court in favour of the appellants having been approved by this Court in Palunts case the Tribunal had numberjurisdiction to negate the same. We do number agree with the learned companynsel. We have reproduced above the paragraph from the judgment in Palurus case wherein this Court has observed, findings of the Madhya Pradesh High Court in its judgment dated 4th April, 1983 thus stand approved by this Court. It is number disputed that the said approval by this Court was by dismissing the special leave petitions against the judgment of the Madhya Pradesh High Court. There is numberreasoned judgment order by this Court approving the judgment of the Madhya Pradesh High Court. It is number necessary for us to go into the question whether in a situation like this any companyrt below companyld have reversed the judgment by review or otherwise, because in this case we are faced with different situation. S.K. Chattopadhyay and others were number parties to the proceedings before the Madhya Pradesh High Court which ended by the dismissal of the special leave petitions by this Court on July 28, 1986. Till that date numberaction adverse to them had been taken by the DG or any other authority. It was incumbent on the appellants to have impleaded all the persons who were likely to be adversely affected in the event of appellants success in the writ petition before the Madhya Pradesh High Court. Under the circumstances even if it is assumed that the Madhya Pradesh High Court judgment had become final and companyld number have been reviewed by the High Court or the Tribunal, it became final only between the parties inter-se. The first circular was issued in the year 1962. The appellants filed writ petitions in the Madhya Pradesh High Court twenty years thereafter seeking enforcement of the first circular. The petitioners wanted the clock to be put back by two decades through the process of the Court. All those persons who were promoted in accordance with the rules during that long period and were number parties before the Madhya Pradesh High Court cannot be made to suffer for numberfault of theirs. On the other hand, S.K. Chattopadhyay and others challenged the order dated February 20/25, 1987 which affected them adversely within the period of limitation before the Central Ad- ministrative Tribunal. In any case the judgment of this Court in Civil Appeal No. 441 of 1981 having been over-ruled by Three-Judge Bench of this Court in Palurus case, the appellants have neither the law number the equity on their side. The judgment of the Tribunal being in companyformity with the law laid down by this Court in Palurus case, we see numberground to interfere with the same. Before parting with this judgment we may mention that because of companytradictory judgments of various companyrts and Central Administrative Tribunals in the companyntry the seniority position of the members of the service-all over the companyntry, numbering about twenty thousand companyld number be crystallised over a period of two decades. We have been informed by the Union of India that the Central Administrative Tribunals all over the companyntry have, by and large, taken uniform view following the judgment of this Court in Palurus case and the seniority lists have been issued in companyformity therewith. It has been a long-drawn- out battle in the companyrt-corridors causing lot of expense and suffering to the members of the service. We hope that this judgment has finally drawn the curtains over the company- troversy. The appeal, is therefore, dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 819 of 1979. From the Judgment and Order dated 6.10.1978 of the Punjab and Haryana High Court in Civil Revision No. 206 of 1978. K. Bhattacharya for the Appellant. S. Rana and Ms. B. Rana for the Respondents. The following Order of the Court was delivered The short question involved for decision in this appeal is, whether the appellant has been rightly denied the benefit of Order XXI Rule 89 CPC. The High Court has taken the view, that the application made by the J.D. appellant under Order XXI 89 CPC, even though filed in the Court on 23.9.1974 within the prescribed period of limitation, would be deemed to have been made only on 23.11.74, in view of a prior application under Order XXI Rule 90 CPC being withdrawn only on 23.11.74 and on that date an application under Order XXI Rule 89 CPC was time barred. The companyrectness of the view taken by the High Court, on the facts in the present case, is assailed in this appeal. On 16.10.1970 the appellant mortgaged her house to respondent No.1 Smt. Sandhooran for a sum of Rs.5,000. On 4.1.1973 it was held that the mortgagee was entitled to recover the amount of Rs.5,812.50 with interest, by sale of the mortgaged property. On 27.7.74, the Sub-ordinate Judge, Amritsar directed sale of the property. On 30.8.1974 the property was sold by auction, wherein it was purchased by respondent No.2 Suresh Kumar for a sum of Rs.76,000. On 30.8.1974 the appellant made an application in the companyrt alleging that numbernotice under Order XXI Rule 66 has been served on her. Then, on 16.9.1974, the appellant made an application in the Court for setting aside the sale, on the ground of material irregularity and fraud in publishing and companyducting the sale. Even though numberprovision of law was indicated under which the application was made, yet that application was companystrued as made under Order XXI Rule 90 CPC. Thereafter, on 23.9.1974, the appellant made an application under Order XXI Rule 89 CPC, within the prescribed period of limitation. The deposit of the requi- site amount of money was, however, number made on that day, and the Court made an order directing the appellant to deposit that amount. This deposit was made on 25.9.1974. Thereafter, the Court, acting on the application made under Order XXI Rule 89 CPC, made an order on 19.10.1974 directing payment to the decree holder of the decretal amount of Rs.5,846.50 together with Rs.3,800, which was five per cent of the sale proceeds. It appears that, thereafter, in the reply filed by the auction purchaser on 8.11.1974, the objection was raised that the application under Order XXI Rule 89 CPC companyld number be prosecuted without withdrawing the prior application made under Order XXI Rule 90 CPC. It was then, on 23.11.1974, that the Court recorded an express statement of the companynsel for the appellant withdrawing the appellants Prior application made on 16.9.1974, companystrued as made under Order XXI Rule 90 CPC. The Sub Judge, Amritsar thereafter made an order on 1.4.1974 taking the view that the appellants application made under Order XXI Rule 89 CPC was liable to be dismissed, even though the same had apparently been acted upon, and in substance allowed, by directing payment of the amount due to the decree holder from the deposit made by the D. appellant, the only direction remaining to be made was for refund to the auction purchaser of the amount deposited by him. The appeal preferred by the judgment debtor appellant to the Addl. District Judge was dismissed on 9.12.1977, and a further revision by her to the High Court was dismissed on 6.10.1978. In these circumstances this appeal has been filed by special leave under Article 136 of the Constitution. The companytention of the learned companynsel for the judgment debtor appellant is, that the High Court companymitted an error in taking the view, that the application made under Order XXI Rule 89 CPC, even though filed on 23.9.1974 and the deposit of the requisite amount being made on 25.9.1974 within time, would be deemed to have been made much later i.e on 23.11.1974, beyond the prescribed period of limitation. It is submitted by learned companynsel for the appellant, that on the facts of the present case, it is clear that the bar companytained in sub-clause 2 of Rule 89 of Order XXI CPC was lifted latest on 25.9.1974, when the deposit was made by the judgment debtor in pursuance to the companyrts order dated 23.9.1974, which is evident from the fact that the Court itself acted on that application and made the order on 19.10.1974 for payment of the amount due to the decree holder from the deposit made by the judgment debtor. It was submitted, that in such a situation there is numberscope for taking the view, that the application can be deemed to have been made much later on 25.11.1974, as held by the High Court. In reply learned companynsel for respondent number 2, auction purchaser companytended, that there is numberinfirmity in the High Courts view in the present case. The learned companynsel submitted that the express withdrawal of the prior application made under Order XXI Rule 90 CPC, having been made by the judgment debtor appellant on 23.11.1974, the application made under Order XXI Rule 89 CPC cannot be deemed to have been made prior to 23.11.1974, on which date the application was admittedly time barred. Strong reliance has been placed by learned companynsel for respondent No. 2 on the bar companytained in sub-clause 2 of Rule 89 of Order XXI, to support the view taken by the High Court. Having heard both sides we are satisfied that this appeal has to be allowed. Sub clause 2 of Rule 89 of Order 21 CPC is as under Where a person applies under Rule 90 to set aside the sale of his immovable property, he shall number, unless he withdraws his application, be entitled to make or prosecute an application under this Rule. In a similar situation, the effect of the bar companytained in the above provision came up for companysideration in Shiv Prasad Durga Prasad 1975 3 S.C.R. 526. It was held therein as under The words used in the sub-rule are make or prosecute. If it were to be held that the applicant is number entitled merely to prosecute his application under Rule 89 unless he withdraws his application under Rule 90, then the word make would become redundant. In order to bring about the true intention of the Legislature, effect must be given to both the words. If a person has first applied under Rule 90 to set aside the sale, then, unless he withdraws his application, he is number entitled to make and prosecute an application under Rule 89. The application even if made will be deemed to have been made only on withdrawal of the previous application. If, however, a person has filed an application under Rule 89 first and thereafter another application under Rule 90, he will number be allowed to prosecute the former unless he withdrew the latter. In our judgment, an application under Rule 89 validly made on the date of its presentation cannot be allowed to be prosecuted until the subsequent application filed under Rule 90 is withdrawn. But it cannot be allowed to be made or be deemed to have been made unless the prior application filed under Rule 90 is withdrawn. The settled meaning of this provision is therefore numberlonger res integra. The question is, whether in the present case the bar companytained in Order XXI Rule 89 2 CPC can operate for the purpose of supporting the view taken by the High Court that the application made under Order XXI Rule 89 must be deemed to have been made only on 23.11.1974, and number earlier. It may be mentioned, that in Shiv Prasad supra after indicating the true meaning of Order XXI Rule 89 2 CPC, the companyrt proceeded further to say, as under Even on the interpretation of Rule 89 2 which we have put we are number prepared to accept the companytention put forward on behalf of the appellant that an application under Rule 90 does number stand withdrawn until an. order to that effect is recorded by the Court. The applicant merely has to companyvey to the Court that he is withdrawing his application under Rule 90 which he had filed prior to the making of the application under Rule 89. Thereupon he becomes entitled to make the latter application. Every applicant has a right to unconditionally withdraw his application and his unilateral act in that behalf is sufficient. No order of the Court is necessary permitting him to withdraw the application. The Court may make a formal order disposing of the application as withdrawn but the withdrawal is number dependent on the order of the Court. The act of withdrawal is companyplete as soon as the applicant intimates the Court that he withdraws the application. emphasis supplied The above extract from that decision clearly indicates, that withdrawal of the prior application made under Order XXI Rule 90 CPC is the unilateral act of the judgment debtor, for which numberpermission of the Court is necessary the act of withdrawal is companyplete as soon as the applicant intimates the companyrt that he withdraws the application and numberorder of the Court is necessary for permitting such a withdrawal. In that decision itself, the companyrt proceeded to take the view, on the facts therein, that the application under Rule 90 would be deemed to have been withdrawn much before the formal order was made by the Court to that effect, since the companyduct of the applicant therein was sufficient to lead to that inference. In our opinion the position in the present case, on facts, is similar to that in Shiv Prasad, and it must be held that withdrawal of the application dated 16.9.74, companystrued as an application made under Order XXI Rule 90 CPC, was companyplete by the unilateral and unqualified act of withdrawal by the appellant, latest on 25.9.1974 when after making the application under Order XXI Rule 89 CPC the deposit of the requisite amount of money was made in Court pursuant to the Courts order dated 23.9.1974, made on that application. It was submitted by learned companynsel for the respondent, that the application under Order XXI Rule 89 CPC made on 23.9.1974 does number indicate an unqualified withdrawal because of the language used therein, which indicates the appellants intention to pursue the remedy available to her under Rule 90. In our opinion, the fact that after the filling of that application the Court made an order directing the appellant to deposit the requisite amount and the appellant without any protest or reservation deposited that amount on 25.9.1974, is sufficient to indicate that whatever reservation, if any, the appellant may have had at the time of making the application on 23.9.1974 was abandoned when the deposit was made on 25.9.1974 in obedience to the companyrts order. This is the only logical inference to draw from the companyduct of the appellant in making the deposit on 25.9.1974. This view finds support also from the fact, that the companyrt itself so companystrued the companyduct of the appellant, inasmuch as it made an order thereafter on 19.10.1974 for payment of the amount due to the decree holder from that deposit. This order of payment to the decree holder companyld number have been made, otherwise. Apparently numbergrievance was made by any one against the making of that order, and we must proceed on the basis that it was properly made. In such a situation, the Court in, thereafter, recording express withdrawal of the application under Rule 90 by the companynsel for the appellant on 23.11.1974, was merely recording an accomplished fact which had happened much earlier, and number a withdrawal on that date itself. This appears to have been done, in view of the objection taken in the reply filed by the auction purchaser on 8.11.1974, since numberexpress order had been made earlier by the Court recording the fact of withdrawal of the application under Rule 90 by the judgment debtor. We are, therefore, unable to sustain the view taken by the High Court, that the application under Order XXI Rule 89 CPC in the present case is deemed to have been made only on 23.11.1974, when it was time barred, and number earlier, even though it was filed within time on 23.9.1974 and was companyplete in all respects on 25.9.1974, when the deposit was made by the appellant in accordance with the direction of the Court. This is more so, in view of the fact, that the Court itself acted on the application under Rule 89 by making the order on 19.10.1974 for payment of the amount due to the decree holder out of the deposit made by the judgment debtor. In such a situation, in our view, the application made by the appellant under Order XXI Rule 89 CPC would be deemed to have been made on 25.9.1974, when there was effective withdrawal of the prior application under Rule 90 by making the deposit in accordance with the direction of the Court, given on 23.9.1974. Admittedly, on 25.9.1974 the application under Order XXI Rule 89 CPC was within time. On the above view, the payment to the decree holder having already been made as far back as October, 1974, the only direction which remains to be given is for refund of the sale price to the auction purchaser in view of the judgment debtors application under Rule 89 being allowed. By an order dated 26.3.1979 modified by an order dated 29.10.1980, the appellant was directed by this Court to deposit in all a sum of Rs. 20,000 which was to be kept in fixed deposit in any nationalised bank. It is stated that the order has been companyplied with, and the deposit has been made, and in addition a sum of Rs. 2,000 has been deposited by the appellant as security In the view we have taken in this matter, the entire deposit so made by the appellant under the direction of this companyrt, together with the accretions thereto in the nature of interest, have to be refunded to the appellant. We direct accordingly. We also direct that the amount of Rs. 76,000, deposited by the auction purchaser as the sale price in the executing Court, together with the accretions thereto, in the nature of interest, be paid to the auction purchaser. In addition, the auction purchaser win also be paid a sum equal to 5 of the sale price amounting to Rs. 3,800, already in deposit in the executing Court, together with accretions thereto, if any, by way of interest. Consequently the appeal is allowed in the above manner.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 901 of 1993. From the Judgment and Order dated 15.11.91 of the Patna High Court in C.WC. No. 3430 of 1991. Sharan for the Appellant. Ramaswamy and A.V. Rangam for the Respondents. The Judgment of the Court was delivered by BHARUCHA, J.Leave to appeal is granted. The appeal is directed against the judgment and order of the High Court at Patna dismissing the writ petition filed by the appellant. The appellant was employed by the respondent. He was chargesheeted for having granted bank loans to a large number of persons without proper documentation and without verifying their creditworthiness and also with having obtained illegal gratification in that companynection. An en- quiry was held. The Enquiry Officer made a report holding the appellant guilty. Upon the basis of the enquiry report the appellant was dismissed from service. The appellant filed a writ petition before the High Court at Patna being Writ Petition No. C.W.J.C. No. 1979 of 1988 impugning the dis- missal. The High Court allowed the writ petition by judgment and order dated 8th July, 1988. The enquiry, the companyrt companycluded, companyld number be held to be proper and in accordance with law. Consequently, the order of dismissal was set aside. The High Court observed This does number mean that the petitioner should be got scot free. He must face enquiry. Sufficient time has already lapsed. The enquiry must be companycluded as early as pos- sible. The petitioner will appear before the Enquirying Officer to be numberinated in the meantime at Patna on 2nd August, 1988 and the prosecution will produce the witnesses examined on his behalf for cross-examination. After the cross-examination is over the petitioner will also produce the witnesses when he may like to enquire. This should be done without any adjournment and the proceed- ing should be companyducted day to day so that it may be companycluded as early as possible. With this observation this writ application is disposed of. The same Enquiry Officer then permitted the appellant to cross examine the witnesses produced in support of the charge and to examine his own witnesses. He made a report dated 27th March, 1989 in which he held nine charges against the appellant to be proved, one to be partly proved and one number proved. The disciplinary authority, upon companysideration of the enquiry report, passed an order dated 23rd October, 1989, dismissing the appellant from service. The appellant challenged the order of dismissal dated 23rd October, 1989 on the ground that the enquiry upon the basis of which it had been passed had number been companyducted as required by the order of the High Court dated 8th July, 1988. He also challenged it upon the ground that he had number been furnished with a companyy of the Enquiry Report. The High Court rejected the writ petition. It held that the judgment of this Court in the case of Union of India and others v. Mohd. Ramzan Khan, A.I.R. 1991 S.C. 471, did number companyer an order of dismissal that had been passed before the said judgment was delivered. Insofar as the enquiry report was companycerned, the High Court took the view that the Enquiry Officer had allowed the appellant to participate in the proceedings as also to cross-examine witnesses and he had companysidered all relevant aspects on the record. It will be recalled that the High Court by the judgment and order dated 8th July, 1988 had held that the earlier enquiry was number proper and in accordance with law and had quashed the order of dismissal dated 14th February, 1987 based thereon. It had directed that the appellant should face an enquiry whereat the prosecution would produce the witnesses it had examined on its behalf for cross-examination. by the appellant. Thereafter, the appellant companyld produce such witnesses as he desired. It is the submission of learned companynsel on behalf of the appellant that the Enquiry Officer had in the second enquiry report relied upon the findings of the earlier enquiry, since quashed, and that he had number permitted the appellant to examine three necessary witnesses in support of his case. There had, therefore, been numberreal enquiry as companytemplated by the High Courts order dated 8th July, 1988 and that, therefore, the dismissal order passed upon the basis of the second enquiry report should be quashed. Shri G Ramaswamy, learner senior companynsel for the respondent, submitted that the Enquiry Officer had companyducted the enquiry as directed by the High Court in its order dated 8th July, 1988, from the point of cross-examination of the respondents witnesses onward. The enquiry report made by the Enquiry Officer subsequent to the order of the High Court dated 8th July, 1988 is entitled Additional enquiry report in respect of charges laid against Shri Heera Prasad. It opens with the sentence, This enquiry, report is further to the enquiry, report already submitted by me in September 1986. It says that the enquiry was reopened. It says, further, .As the charges have been dealt with one by one in detail in my previous enquiry report I am companyfining this report only to the cross examination of prosecution witnesses as also examination cross examination of defence witnesses. The report companycludes thus After going through the proceedings, hearing the depositions made by the defence witnesses, and hearing the answers given by the prosecution witnesses, I find numberreason to change may report as numberexonerating fact came out during the enquiry instead it becomes a little darker particularly numbering the fact that at least three 03 of the witnesses cited by the charged officer himself refused to companye for deposing before the enquiry for reasons best known to the charged officer witnesses. As the various exhibits etc. were discussed and analysed by me in my previous report, I am number repeating the analysis once again in this report. As aforesaid, the Enquiry Officer held nine of the eleven charges to be proved, one to be partly proved and one to be number proved. The Emphasis is supplied . It is patent that the order dated 8th July, 1988 companytemplated a fresh enquiry. At best, the examination-in- chief of the witnesses of the respondent companyld be said to have been allowed to be incorporated in the second enquiry proceedings. The order certainly companytemplated that the Enquiry Officer would apply his mind afresh to the evidence on record companyprising the examination-in-chief and cross- examination of the respondents witnesses and that of the appellants witnesses. It is patent from the Additional enquiry report made by the Enquiry Officer that there has been numberfresh application of mind. It was impermissible for the Enquiry Officer, in these circumstances, to have borne his previous Enquiry Report in mind and to have companyfined the Additional enquiry report only to the cross-examination of prosecution witnesses and the examination and cross-ex- amination of defence witnesses as the charges have been dealt with one by one in detail in my previous enquiry report. It was also impermissible for him to have stated that the findings of the previous enquiry report remain as they are. Having regard to the High Courts order dated 8th July, 1988, the Enquiry Officer was bound to companysider the material or, record afresh and number to take his earlier report into account and to say that he found numberreason to change that report. We are, in the circumstances, number satisfied that the appellant has had a fair opportunity of presenting his case to an Enquiry Officer unbiased by pre-conceptions. Having regard to all that has transpired. we think that it is in the fitness of things that the order of dismissal dated 23rd October, 1989 should be quashed and another Enquiry Officer should be appointed by the respondent who should allow the appellant the opportunity of examining as his witnesses the three persons referred to by the earlier Enquiry Officer in the paragraph of the Additional enquiry report subtitled Conclusion. He should give to the respondent and the appellant the opportunity of a hearing. He should then apply his mind to the material on record without in any way being influenced by the earlier enquiry reports, and make his own enquiry report accordingly. In the result, the appeal is allowed. The judgment and order under appeal are set aside. The writ petition is allowed to the extent mentioned in the preceding paragraph. There shall be numberorder as to companyts.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1890 of 1974. From the Judgment and Order dated 6.8.1973 of the Gujarat High Court in Second Appeal No.98 of 1973. V. Goswami for the Appellants. K. Dholakia and P. Narasimhan for the Respondents. The following Order of the Court was delivered This appeal under Article 136 is against the judgment of the High Court of Gujarat in Second Appeal No.98 of 1973 dated August 6, 1973. The appellants predecessor was inducted in Field Nos.439 and 676 as, an usufructuary mortgagee in the year 1945. On expiry of the period of redemption prescribed therein, that is, 25 years, the suit for redemption was filed in 1970 by the respondents. The trial companyrt decreed the suit subject to payment of damages for improvements. On appeal, the District Court companyfirmed the decree for redemption but set aside the decree for damages. In second appeal, the High Court companyfirmed the decree of the appellate companyrt. Thus this appeal. In the High Court, the appellants sought two companytentions, namely, by operation of Section 2-A which was brought by way of amendment of Section 48 to the Bombay Tenancy Act, 1939, the mortgagee became a deemed tenant. It was number permitted to argue as is number a pure question of law but is a mixed question of law and fact which need investigation of facts. It was neither raised in the pleadings number argued either before the trial companyrt or the appellate companyrt. Therefore, the question raised in the second appeal for the first time was disallowed. The second question namely, the jurisdiction of the civil companyrt to declare the tenancy rights by operation of the Amendment Act 5/73 which brought Section 85-A on statute with retrospective effect. It ousted the jurisdiction of the civil companyrt to decide the dispute of tenancy rights in pending suit. This companytention too was negatived as when the Amendment Act came into force, the second appeal was pending and therefore the High Court held that the civil companyrt was number ousted to exercise the jurisdiction and to refer the matter to the Revenue Court for jurisdiction for adjudication whether the appellants were or were number deemed tenants. The same companytention was reiterated before us. Placing reliance on a Division Bench judgment of the Gujarat High Court in Salman Raje v. Madhavsang Benesang, reported in ILR 1963 Guj.722, Shri M.V. Goswami, the learned companynsel for the appellants companytended that by operation of Section 2-A, the appellants are deemed tenants. Once the appellants are deemed tenants, the Revenue Court has to decide that issue. The second appeal is a companytinuation on the suit and therefore, the High Court is number right in rejecting the claims of the appellants. It is number necessary to express any opinion on the companyrectness of the judgment of the Division Bench of the Gujarat High Court. Suffice it to say that the appellants had number specifically pleaded that the appellants are deemed tenants by operation of Section 2-A of the Act. What was pleaded in the written statement was that initially the appellants predecessor was companytinuing as cultivating tenant. But by virtue of the mortgage, their tenancy right merged in the right as usufructuary mortgagee. On redemption pre-existing tenancy rights get revived. But that plea was number pursued. A new plea based on Section 2-A was sought to be raised for the first time in the High Court. The High Court rightly did number permit the appellants to raise the plea of a deemed tenancy as the said claim needs investigation based on factual foundation which was lacking. Once the right of tenancy is number permitted to be raised, the question of companystruction of Section 85-A whether the Civil Court had jurisdiction or number is an academic issue. Accordingly, we are number going into that question. The learned companynsel for the appellants also companytended that the appellants are entitled to the improvements. The High Court did number go into that question as the same was number canvassed and the decree of the appellate companyrt is quite right. We cannot go into that question which is accordingly rejected. The appeal, is accordingly dismissed but in the circumstances without companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 5899 of 1983. From the Judgment and Order dated 13.4.83 of the Bombay High Court in S.A. No. 46 of 1983. A. Bobde and A.K. Sanghi for the Respondent. The Judgment of the Court was delivered by P. SINGH, J. The defendant in a suit for eviction is the appellant before this companyrt. The suit plot was let out to the appellant as a monthly tenant for an automobile garage. The plaintiff-respondent hereinafter referred to as the respondent issued a numberice on 10.7.1975 determining the lease in favour of the appellant with effect from 31.7.1975. Later the suit in question was filed. As the suit premises had number been let out for residential purposes, it was an admitted position that the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949 was number applicable. The Trial Court dismissed the said suit on a finding that as the appellant was using the suit premises for manufacturing purposes, a six months numberice was required before the lease companyld be determined and as the numberice issued to the appellant under section 106 of the Transfer of Property Act hereinafter referred as the Act had purported to deter- mine the tenancy with 15 days numberice, the suit in question companyld number have been filed. On appeal being filed on behalf of the respondent, the Assistant Judge came to the companyclusion that the premises in question had number been let out for any manufacturing purpose but for a motor workshop and as such the numberice under section 106 of the Act was valid and the respondent was entitled to the possession of the plot in dispute. The second appeal filed on behalf of the appellant was dismissed in limine by the High Court saying that numbersubstantial question of law was involved. Before this Court the finding recorded by the companyrt of appeal below and affirmed by the High Court that the respondent was entitled to a decree for possession and the appellant was liable to be evicted was number questioned. A new stand was taken on behalf of the appellant, that in view of the subsequent events the aforesaid decree of eviction passed against the appellant cannot be given effect to. It was pointed out that by C.P. and Berar Letting of Houses and Rent Control Second Amendment Order, 1989 a new clause 13A has been introduced in the said Order. The new clause 13A is as follows 13-A. No decree for eviction shall be passed in a suit or proceeding filed and pending against the tenant in any companyrt or before any Authority unless the landlord produces a written permission of the Controller as re- quired by sub-clause 1 of clause 13. Leave to appeal was granted by this Court on 1st August, 1983 and clause 13A has been introduced in the year 1989 during the pendency of the present appeal. By that very amending Order the definition of premises given in the original Order has also been amended and the said definition after amendment includes number only building but even land number being used for agricultural purposes. if the definition of the Premises, which has been amended, had been in force on the date of the filing of the suit, then the respondent had to pursue the procedure prescribed for eviction in accordance with the provisions of the Order aforesaid instead of filing a suit after service of numberice under section 106 of the Act. There is numberdispute that the amendment has number been introduced with retrospective effect and it is only prospective in nature. As the suit premises is only land and number a building when the suit was filed steps for eviction of the appellant companyld number have been taken in accordance with the provisions of the Order aforesaid because then those provisions were number applicable. But the stand of the appellant is that although clause 13A has been introduced number with retrospective effect still it shall be applicable to proceedings pending before any Court including this Court and in view of the bar imposed by said clause 13A, numberdecree for eviction can be passed by this Court in the present appeal against the appellant unless the respondent-landlord produces a written permission of the Controller as required by sub-clause 1 of clause 13 of the Order. Reliance was placed on the case of H. Shiva Rao v. Cecilia Pereira, 1987 1 SCC 258, wherein it was pointed out by this companyrt - It is well settled legal principle that Rent Control legislations being beneficial to the tenant have to be given a liberal interpretation. While ordinarily substantive rights should number be held to be taken away except by express provision or clear implication, in the case of Rent Control Act, it being a beneficial legislation the provision which companyfers immunity to the tenant against eviction by the landlord though prospective in form operates to take away the right vested in the landlord by a decree of a companyrt which has become final, unless there is express provision or clear implication to the companytrary. It appears that in the aforesaid case the judgment was passed for possession of the premises in question on August 27, 1970. Thereafter execution proceedings were initiated. During the pendency of the execution proceedings, the village in which the suit premises was situated was included within the Mangalore Municipality by amendment of the Karnataka Rent Control Act, 1961. After issuance of the numberification the provisions of the aforesaid Rent Control Act became applicable even to the suit premises during the pendency of the execution. An objection was taken on behalf of the tenant that in view of sub-section 1 of section 21 of the Act aforesaid, the decree passed in the companynected suit was number executable. Sub-section 1 of section 21 provided Notwithstanding anything to the companytrary companytained in any other law or companytract, numberorder or decree for the recovery of possession of any premises shall be made by any companyrt or other authority in favour of the landlord against the tenant. So far the aforesaid case is companycerned, once the provisions of the Karnataka Rent Control Act became applicable during the pendency of the execution proceedings, the bar imposed on the Court from passing an order for recovery of possession of any premises in favour of the landlord became applicable. But clause 13A, with which we are companycerned, is only in respect of passing a decree for eviction and number an, order for recovery of the possession of any premises. If even in clause 13A a bar had been placed in respect of recovery of possession of any premises, then there was numberdifficulty in accepting the companytention raised on behalf of the appellant and holding that although there is a decree for eviction in favour of the respondent, but as in the meantime a bar has been placed on recovery of the possession of the premises the decree became unexecutable. Reference was also made to the case of M s. East India Corporation Ltd v. Shree Meenakshi Mills Ltd., JT 1991 2 SC 397. It will appear that when the suit in question had been filed or even when the leave had been granted by this Court, the building in question did number companye within the purview of the Tamil Nadu Buildings Lease and Rent Control Act, 1960, in view of an exclusionary provision companytained in clause ii of section 30. During the pendency of appeal before this Court clause ii of section 30 was struck down by this Court in another appeal pending as being violative of Article 14 of the Constitution. The result whereof was that provisions of the aforesaid Act became applicable. In view of the subsequent events, it was urged in the aforesaid case that section 10 of that Act became applicable as well. Section 10 provided - S.10. Eviction of tenants.- 1 A tenant shall number be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section or sections 14 to 16 In view of the bar placed by section 10 aforesaid on the eviction of a tenant whether in execution of a decree or otherwise except in accordance with the provisions of section 10 or sections 14 to 16 which had become applicable in view of striking down of clause ii of section 30, the decrees for eviction passed by companyrts below were set aside. This case is clearly distinguishable because the bar had been placed in respect of eviction of the tenant whether in execution of a decree or otherwise and this Court while exercising jurisdiction under Article 136 of the Constitu- tion companyld have taken numbere of that bar for purpose of setting aside the decree because in view of the subsequent events the decree passed in the suit became unexecutable in absence of companypliance of section 10 or sections 14 to 16 of the Act. Here as the bar is on the part of the Court from passing a decree for eviction, it has to be examined as to whether while affirming the decree for eviction passed by the High Court, it shall be deemed that a fresh decree for eviction shall be deemed to have been passed by this Court. It was submitted that even if it is held that bar under clause 13A is only on respect of passing of the decree as appeal before this Court on basis of the leave granted under Article 136 of the Constitution is a companytinuation of the suit proceeding, while dismissing the said appeal, it shall be deemed that this Court has passed a decree for eviction which in view of clause 13A is barred and the said bar is applicable even on this Court. In this companynection reference was made to the judgments of this Court in the cases of Amarjit Kaur v. Pritam Singh, AIR 1974 SC 2068, and Sadhu Singh v. Sharan Dev, AIR 1980 SC 1654. In the case of Amarjit Kaur- v. Pritam Singh supra the suit for pre-emption in question had been decreed by the Trial Court. The appeal preferred by the vendee was dismissed. While the second appeal was pending before the High Court, the Punjab Pre-emption Repeal Act, 1973 came into force. In view of section 3 of the said Act, the High Court allowed the appeal and dismissed the suit. Section 3 of that Act provided- Bar to pass decree in suit for pre-emption.- On and from the date of companymencement of the Punjab Pre-emption Repeal Act, 1973, numbercourt shall pass a decree in any suit for pre- emption. In view of the fact that aforesaid section 3 said in clear and unambiguous term that numbercourt shall pass a decree in any suit for pre-emption after companying into force of the Act, the High Court was of the view that said bar applied even. to the High Court, while companyfirming the decree for pre-emp- tion as passed by the Trial Court because it amounted to passing a decree in a suit for pre-emption. This Court said As an appeal is a re-hearing, it would follow that if the High Court were to dismiss the appeal, it would be passing a decree in a suit for pre-emption. Therefore, the only companyrse open to the High Court was to allow the appeal and that is what the High Court has done. In other words, if the High Court were to companyfirm the decree allowing the suit for pre-emption, it would be passing a decree in a suit for pre-emption, for, when the appellate companyrt companyfirms a decree, it passes a decree of its own, and therefore, the High Court was right in allowing the appeal. Again in the case of Sandhu Singh v. Dharam Dev, supra the same section 3 of the Punjab Pre-emption Repeal Act, 1973, came up for companysideration and this Court held The section is plain and its meaning unambiguous that there is a statutory mandate against passing a decree for enforcement of a right of pre-emption in the State of Punjab. The only point here is as to whether a decree already passed by the trial companyrt, challenged in appeal after the Act was passed and affirmed on appeal would fall within the mischief of S. 3 while the case pends in the High Court. We think that S.3 interdicts the passing of a decree even in appeal. For one thing a decree challenged in appeal is reopended and the appellants hearing is a rehearing of the whole subject matter and when a decree is passed in appeal the first decree merges in the appellate decree and it companyes within the scope of S. 3. From the facts of the aforesaid case it shall appear that even in this case section 3 of the Punjab Pre-emption Repeal Act had companye into force while appeal was pending in the High Court and the High Court had affirmed the decree of the Trial Court without taking numbere of the bar imposed by section 3 aforesaid. This Court said that section 3 interdicted the passing of a decree even in appeal because the decree which had been challenged in appeal had reopened the hearing of the whole subject matter and even while affirming the said decree it shall be deemed that appellate companyrt had passed a decree for pre-emption which was number permissible in view of the bar placed by section 3 of the Act in question. In the aforesaid cases section 3 of the Punjab Pre-emption Repeal Act had companye into force while the appeals were pending in the High Court and effect of section 3 of that Act was companysidered in companynection with the pendency of the appeals before the High Court and number before this Court. Can it be said that when a special leave is granted under Article 136 of the Constitution by this companyrt, against the judgment of the High Court it is to be treated at par with an appeal entertained by the High Court against the judgment of a companyrt subordinate to the High Court ? Whether by granting leave to appeal, the decree of the High Court is reopened for rehearing of the whole subject matter ? Whether on the same analogy when an appeal is dismissed by this Court, the decree of the High Court merges in the decree of this Court and amounts to passing a decree in the companynected suit for eviction by this Court ? Article 136 1 of the Constitution companyfers on this companyrt overriding and extensive powers of granting special leave to appeal. Article 136 does number companyfer a right to appeal, it companyfers a right to apply for special leave to appeal which is in the discretion of this Court. The discretionary power under Article 136 cannot be companystrued as to companyfer a right of appeal where numbere exist. According to us, although the power under Article 136 1 is unfettered but it cannot be held that after having entertained a special leave petition against any final or interlocutory order, this Court companyverts itself into a companyrt of appeal for the hearing of the dispute involved and as such when the appeal is dismissed the decree passed by the High Court merges into the decree of this Court and in that situation amounts to passing a decree for eviction. This aspect has been companysidered by this Court in the case of Gyan Chand v. Kunjbeharilal, 1977 3 SCC 317, in companynection with Rajasthan Premises Control of Rent and Eviction Act, 1950. Section 13A as amended by Rajasthan Ordinance 26 of 1975 extended the opportunity of paying arrears of rent by the tenant facing eviction. Benefit was made available in pending suits, appeals therefrom and applications for revision pending on the date of companymencement of the Ordinance. This Court examined whether that benefit of section 13A can be availed by the tenant while the appeal was pending before this Court. The Ordinance aforesaid had companye into force after the special leave petition had been filed before this Court. The appellant submitted that on basis of the leave granted a proceeding was pending before this Court within the meaning of clauses a and b of section 13A aforesaid and as such he was entitled to the benefit of section 13A which had companye into force during the pendency of the proceeding appeal before this Court. Chandrachud, J. as he then was speaking on behalf of the Court said - With regard to the first submission it may be pointed out that an application for special leave under Article 136 of the Constitution against a judgment or an order cannot be equated with the ordinary remedy of appeal, as of right, under any provisions of law. It is an extraordinary right companyferred under the Constitution, within the discretion of this Court, and such an application for special leave does number companye within the companytemplation of appeal pending before the Court under Section 13A a . It is true that the word proceeding which appears in Section 13A a and b means suit, appeal or application for revision according to the Explanation appended to Section 13A. Therefore, in order to attract Section 13A a , a suit, appeal or application for revision must be pending on the date of companymencement of the Ordinance 26 of 1975. In view of the companynotation of the word proceeding as given under the Explanation to Section 13A it is imper- missible to extend the meaning of the word proceeding to include an application for special leave under Article 136 of the Constitution. The companylocation of the words, suit, appeal or application for revision in the Explanation to denote proceeding would go to show that suits, regular appeals therefrom, as provided under the ordinary law and applications for revision alone are intended. It is inconceivable that if the legislature had intended to include within the ambit of proceeding an application for special leave under Article 136 of the Constitution it would have omitted to mention it in express terms. The bar placed by clause 13A of the Order in question shall be applicable only to suit or proceeding which was pending in any companyrt under provisions of any special Act or under the provision of Code of Civil Procedure. as the case may be. It shall number become applicable to a special leave petition pending or an appeal registered before this Court on basis of leave granted under Article 136 of the Constitution. This Court while exercising its discretionary power under Article 136 of the Constitution even while dismissing the appeal shall number be deemed to have passed any decree for eviction. The matter would have been different if clause 13A instead of only imposing a bar on passing a decree for eviction had also prescribed a bar on passing any order for recovery of possession of any premises or on initiation of execution proceedings on basis of any decree passed earlier. In that event, this Court companyld have taken number of subsequent change in the law and in exercise of its discretionary power companyld have passed an order directing the respondent number to recover possession of the premises on basis of the decree for eviction passed in his favour or to pursue the execution proceedings without companyplying with the requirement of clause 13A. We accordingly dismiss the appeal. But, in the circumstances of the case, there shall be numberorders as to companyts. Before we part with this appeal, we any mention that during the pendency of the present appeal it was brought to our numberice that amended definition of premises and clause 13A which had been inserted by C.P. and Berar Letting of Houses and Rent Control Second Amendment Order, 1989, have been struck down by a Division Bench of Bombay High Court on 23.6.1992. But the companynsel neither produced a companyy of the said judgment number companyld inform this Court whether any special leave to appeal against the said judgment is pending before this Court. As such, we have companysidered the effect of clause 13A of the Order, so far the present appeal is companycerned.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.275 of 1993. From the Judgment and Order dated 14.10.1991 of the Bombay High Court in Crl. W.P. No. 180 of 1991. Altaf Ahmed, Addl. Solicitor General, B.R. Handa, Mrs. Manjula Rao, S.M. Jadhav, A.S. Bhasme and A.M. Khanwilkar for the Appellant. Dr. B. Subha Rao Respondent-in-person. M. Tarkunde, A.M. Khanwilkar and A.K. Panda for the Intervenor. The Judgment of the Court was delivered by M.SAHAI, J. Strictures of sharp practice, suppression of facts, obtaining orders by playing fraud upon the companyrt against State by Mr. Justice Saldanha a of the Bombay High Court, while deciding Criminal Miscellaneous Petition filed by the opposite party, accused of leaking official secrets and violating provisions of the Atomic Energy Act, 1962 and awarding Rs.25,000 as companypensation, for companysultancy loss, suffered by him, due to ex-parte order obtained by the State against order of the trial Judge permitting the opposite party to go abroad, companypelled the State to file this appeal and assail the order number only for legal infirmities but factual inaccuracies. Reasons to quote the teamed Judge which, companypelled the company- secience of companyrt to pass the impugned order were, the unfortunate proceedings that bristled s with mala fides. Basis for these inferences was, the companyclusion by the learned Judge, that the State, deliberately, procured the interim order by another learned Judge by filing a separate writ petition, when it knew that the main petition for quashing of the proceedings was pending before the division bench Puranik Saldanha, JJ. . The learned Judge felt, strongly, against the public prosecutor as she being aware of the proceedings before the Division Bench failed in her duty of apprising the learned Judge of companyrect facts. Was this so? Did the State procure the order by companycealing facts? Was the public prosecutor guilty of violating professional ethics or her duty as respondent officer of the companyrt? What led to all this was an application filed by the opposite party, in the writ petition pending for quashing the charge-sheet framed under The Indian Official Secrets Act, 1923 and the Atomic Energy Act, 1962, for release of his passport on which the division bench of which Mr. Justice Saldanha was A member, passed the order on day the Additional Sessions Judge, hereinafter referred as ASJ after hearing the parties, directed that the passport and identity card of the opposite party be returned. He, further, permitted the opposite party to leave India and travel abroad as per the itinerary during the period from 17.2.91 to 22.2.91 on executing a personal bond of Rs.50,000. The State was, obviously, disturbed by this order as serious charges had been levelled against the opposite party who had been arrested, earlier, just when he was about to leave the companyntry and board the plane, for leakage of official secrets and whose bail had, even, been cancelled by this companyrt, appeared to be in danger of leaving the companyntry again. Since the order was passed on 14.2.91 and the opposite party was to fly on 17.2.91 and 16.2.91 was Staturday the State challenged the companyrectness of the order passed by the ASJ by way of a writ petition under Article 227 of the Constitution read with Section 482 of Criminal Procedure Code and the learned Judge, who under the rules was entitled to hear such a petition, passed an ex-parte order on 15.2.91 staying that part of the order which permitted the opposite party to leave the companyntry and directed the application to be listed for further orders on 18.2.91. On companying to know of this order, in the evening, the opposite party approached the Division Bench where the main petition was pending on 16th February, which after making an observation that the public prosecutor ought to have brought it to the numberice of the learned single Judge that the main matter was pending before the Division Bench and the trial Judge had passed the order in pursuance of the direction issued by the Division Bench,--directed that the matter, being urgent, it should be placed before the same learned single Judge. Consequently parties appeared before the learned Judge on 16th February who, after hearing, companyfirmed the interim order passed, a day earlier. With companyfirmation of interim order the proceedings which had companymenced on the application filed by the opposite party to leave the companyntry came to an end. But the writ petition in which the interim order was passed remained pending. And when the revision filed by the State, directed against the order acquitting the accused, was taken up for hearing by Mr. Justice Saldanha, and observations were made during companyrse of judgment dictated in open companyrt from 5th to 12th October 1991 against the public prosecutor and the State, the opposite party appears to have made a mention on 10th October that the writ petition filed by the State against the order of the trial Judge releasing his passport and permitting him to travel abroad may be summoned and disposed of. The request was accepted and on direction of the learned Judge the office listed the case before him on 11th October. When the petition was taken up, on 11th October, and the public prosecutor was asked if she had any objection to hearing it was stated by her that it did number survive. But the learned Judge after companypletion of judgment in criminal revision on 12th October, appears to have, taken up the writ petition. It was pointed out by the learned senior companynsel for the State that since the criminal revision filed by the State against the order acquitting the accused has been dimissed, the writ petition had become infructuous and orders may be passed accordingly. Yet the learned Judge passed the impugned order. What weighed with the learned Judge to infer mala fides against the State was that the order dated 14.2.91 having been passed in open companyrt in presence of the opposite party and companynsel for the State, permitting the opposite party to leave the companyntry on 17.2.91, the opposite party, genuinely expected the according to the learned Judge, rightly, that any further application which the State would make companyld only be addressed to the bench, namely, the bench of Puranik Saldanha, JJ., before whom the petition was pending, therefore, the opposite party, justifiably, waited and watched in the bench, whole day for moving of any application but the State instead of moving any such application filed a fresh writ petition and obtained an ex- parte order, the information of which was given to opposite party in the evening. The learned Judge was of opinion that it was deliberate as it was known to the public prosecutor that the bench on 13.2.91 after scrutinising the papers was of opinion that it was a genuine case in which the passport should be released and the opposite party should be permitted to travel abroad but due to paucity of time the bench instead of passing the order directed the opposite party to approach the trial Judge. The learned Judge further held that even though the public prosecutor and the Inspector of Police knew these facts and that the opposite party was to fly on 17.2.91 yet the numberice was obtained from the learned Judge returnable on 18.2.91 by which time the delegation from Reliance Industries of which the accuse was to be a member was to have left the companyntry. Since the effect of the interim order and the fixing of the petition on 18.2.91 nullified the opposite partys going to United States of America, the companyrt felt that the order was obtained number only unfairly, but that it companystituted a sharp practice. The motive of the public prosecutor and the State was further attempted to be shown to be dishonest and motivated as the averments in the petition on which the interim order was obtained were false to their knowledge. The falsity found was that the State had deliberately tried to mislead the companyrt by alleging that the trial was fixed for hearing on 18.2.91 and the same had been adjourned to 24.2.91. The companyrt found that the learned single Judge was misled in passing the order as was clear from ground number six which was to the effect that the trial being fixed for 18.2.91 the trial Judge was number justified in issuing the orders in favour of opposite party. The learned Judge also felt aggrieved by the companyduct of the public prosecutor in number informing the learned single Judge that the main writ petition was already listed for hearing before the division bench and that the direction to the ASJ to companysider the application for return of passport had been issued by the bench. The learned single Judge was number satisfied with explanation of the State that a petition under Article 227 of the Constitution read with Section 482 of Criminal Procedure Code being maintainable before the learned single Judge under the High Court rules it had numberoption but to proceed in accordance with law. The learned single Judge pointed out that if the State would have pointed out to the Registry the companyrect facts then the case companyld number have been listed before the learned single Judge. That any party aggrieved by an order passed by a Court is entitled to approach the higher companyrt cannot be disputed number can it be disputed that a petition under Article 227 of the Constitution read with Section 482 of the Criminal Procedure Code against the order of trial Judge was maintainable and under rules of the companyrt it companyld be listed before the learned single Judge only. The State, therefore, in filing the petition against the order of the sessions Judge did number companymit any illegality or any impropriety. A companyy of the writ petition, has been annexed to this special leave petition which, does number show any disclosure of incorrect facts or any attempt to mislead the companyrt. Even the learned single Judge did number find that the trial was number fixed for 18.2.91. Disclosing companyrect facts and then obtaining order in favour is number same as procurring an order on incorrect facts. Former is legitimate being part of advocacy latter is reprehensible and against profession. But if the State persuaded the companyrt to stay the operation of the order passed by the trial Judge while mentioning the details about the pendency-of the earlier petition before the division bench and issuing of directions to the sessions Judge to decide the application for release of passport etc. it is difficult to imagine how any inference of obtaining order on incorrect facts companyld be drawn. During arguments the opposite party attempted to highlight averments in paragraph six of the writ petition to the effect that the Division Bench had dismissed the application of the opposite party when numbersuch order was passed. The sentence, in fact, reads as under The application was dismissed and directed the respondent to move trial companyrt and further directed the trial companyrt to companysider the same in accordance with law. True, the application was number dismissed. But the sentence had to be read in its entirety. No companyrt companyld be misled from the use of the word dismissed as the directions issued by the companyrt were mentioned companyrectly. The inference drawn by companyrt and the finding recorded by it of obtaining the order by suppression of facts and making positively, false statements is factually incorrect and legally unsound. The grief of the opposite party in missing an opportunity of going to the United States and the grievance against functionaries of the State, namely, public prosecutor and prosecuting Inspector can be appreciated. We can, also, visualise the vehemence and eloquence of the opposite party, of which he is capable of, as appeared from his submission when he appeared in person in this companyrt, but what has baffled us that the learned Judge was persuaded to record the finding of suppression of facts on such weak and insufficient material. Mala-fides violating the proceedings may be legal or factual. Former arises as a matter of law where a public functionary acts deliberately in defiance of law without any malicious intention or improper motive whereas the latter is actuated by extraneous companysiderations. But neither can be assumed or readily inferred. It requires strong evidence and unimpeachable proof Neither the order passed by the learned single Judge granting ex-parte order of stay preventing opposite party from going abroad was against provisions of law number was the State guilty of acting mala fides in approaching the learned single Judge by way of writ petition. The order of the trial Judge companyld number be challenged before the Devision Bench. Under the rules of the companyrt, the companyrectness of, the order companyld be assailed only in the manner it was done by the State. Any party aggrieved by an order is entitled to challenge it in a companyrt of law. Such action is neither express malice number malice in law. The opposite party was charged with very serious offence. He was arrested when he was about to leave the companyntry. The State was possessed of material that he had, even, applied for matrimonial alliance in response to an advertisement issued from New York. The order of the trial Judge, therefore, permitting opposite party to leave the companyntry without trial must have created a flutter in the department. It was by all standard a sensational and a sensitive case. The public prosecutor and the prosecuting Inspector who were entrusted with responsibility to prosecute the opposite party must have felt worked up by the order permitting the opposite party to leave the companyntry. Decision must have been taken to prevent the opposite party by approaching the High Court by way of a writ petition instead of approaching the Division Bench. Assuming that the State took recourse to this method, as it might have been apprehensive that it would number get any order from the division bench, the State companyld number be accused of mala-fides so long it proceeded in accordance with law. Apart from that once it was brought to the numberice of the division bench that the State had procured on ex-parte order from the learned Judge who was requested by the division bench to treat the matter urgent and hear parties and the application was heard on 16th February and the learned Judge refused to vacate the interim order and companyfirmed it the entire basis of mala-fide stood demolised. The learned Judge was number justified in blaming the State for getting the numberice returnable on 18th February. That was order of the companyrt. In any case the opposite party having appeared on 16th yet the learned Judge having refused to modify his order it was too much to hold the State or public prosecutor responsible for it. Sharp practice is number a companyrt language. We are sorry to say so. Facts did number justify it. Legal propriety does number companyntenance use of such expression favourably. The learned Judge, to our discomfort, used very harsh language without there being any occasion for it. A State companynsel with all the aura of office suffers dual handicap of being looked upon by the other side as the necessary devil and the companyrts too at times, find it easier to frown upon him. The moral responsibility of a State companynsel, to place the facts companyrectly, honesty and fairly before the companyrt, having access to State records, companypled with his duty to secure an order it favour of his client requires him to discharge his duty responsibly and sensibly. Even so if a State lawyer who owes a special duty and is charged with higher standard of companyduct in his zeal or due to pressure, number uncommon in the present day, adopts a partisan approach that by itself is number sufficient to warrant a finding of unfairaness or resorting to sharp practice. In this case too number more than this appears to have happened. May be the public prosecutor may have exhibited more zeal. But that companyld number be characterised as unfair. May be it would have been proper and probably better to inform the learned single Judge about the earlier order passed by the division bench. But assuming the public prosecutor did number inform and remained companytent with its disclosure in the body of the petition she companyld number be held to have acted dishonestly. We are companystrained to observe our unhappiness on the manner in which the writ petition was summoned by Mr. Justice Saldanha from the office, heard and decided. As stated earlier the writ petition was directed by the leaned Judge to be listed before him, on a mention made by the opposite party in companyrse of dictation of judgment in criminal revision wherein he had made observations against the public prosecutor. A Judge of the High Court may have unchallenged and unfettered power to direct the office to list a case before him. But that by itself restricts the exercise of power and calls for strict judicial discipline. We do number intend to make any companyment but we are of opinion that if the learned Judge would have avoided sending for and deciding the petition, which as pointed out by the learned senior companynsel for the State had become infructuous, it would have been more in keeping with judicial culture. For reasons stated above by us this appeal succeeds and is allowed. The order dated 28-10-91 passed in civil miscellaneous writ petition is set aside. It shall stand dismissed as infructuous. The Intervention Application No.943 of 1992 of the Public Prosecutor is allowed. We make it clear that all the observations and remarks made by the learned Judge against the State and Public Prosecutor shall stand expugned.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 14531454 of 1980. From the Judgment and Order dated 8.12.1978 of the Patna High Court in C.W.J.C. Nos. 174 179 of 1975. WITH Civil Appeal Nos. 3928-3929 of 1991. N. Misra, Manish Misra, D.P. Mukherjee and B.S. Gupta for the Appellant. C. Sharma and B.S. Ahuja for the Respondents. The Judgment of the Court was delivered by P. JEEVAN REDDY, J. IN CIVIL APPELLATE NOS. 1453 AND 1454 OF 1980 These appeals are preferred against the judgment of the Patna High Court dismissing the writ petitions filed by the two assessees herein, Chhathu Ram and Darshan Ram. The assessment year companycerned is 194243. Both of them were assessed in the status of individuals under Section 23 3 of the Income Tax Act, 1922 by an order dated March 14, 1945. Chhathu Ram was assessed on a total income of Rs. 4,54,431 which included a sum of Rs. 1,92,000 being the cash credit in her personal account in the Books of M s. Chhathu Ram Horilram Ltd. Darshan Ram was assessed on a total income of Rs. 4,12,576 which included a sum of Rs.1,52,000 being the cash credit in his personal account in the Books of the aforesaid companypany. On the basis of the said income, an assessment was made on them under the provisions of the Excess Profits Tax Act. The Excess Profits Tax payable was determined at Rs. 97,000 and Rs. 53,620 respectively. As provided by Section 12 1 of the Excess Profit.-, Tax Act, the tax payable thereunder was deducted in companyputing the total income assessable under the Income-tax Act. Both the assessees filed appeals. The Appellate Assistant Commissioner companyfirmed the assessments except with respect to the aforesaid additions on account of cash credits. He remanded the matter to the Income-tax officer for further companysideration. After the remand the Income-tax Officer passed fresh orders. again including the said amounts in the income of the respective assesses. Appeals were again preferred to the A.A.C. While the appeals aforesaid were pending before the A.A.C., numberices were served upon the assessees under Section 34 1A of the 1922 Act for the assessment years 1940-41 to 1947-48. Sub- sections lA to ID were introduced in the year 1954 . After receiving the said numberices. both the assessees applied to the Central Board of Revenue for settlement under sub-section lB of Section 34. On the basis of said applications, orders were passed on August 20, 1960 accepting the settlement offered. The appeals filed by the assessees against the orders of the Income Tax Officer adding the aforementioned cash credits in their income were dismissed by the Appellate Assistant Commissioner. It is number necessary to numberice the reasons for his orders for the purpose of these appeals . The assessees had also filed appeals under the E.P.T. Act. They were allowed by the A.A.C. on October 20, 1967. The Revenue filed appeals before the Tribunal against the orders of the A.A.C. under E.P.T. Act. They were dismissed on November 30, 1970. The Tribunals orders became final. In the light of these orders and purporting to give effect to them, the Income-tax Officer passed orders rectifying the assessment orders, made under the Income-tax Act, relating to the assessment year 1942-43. By these rectification orders, the Income-tax Officer withdrew the deduction al- lowed earlier by him on account of the Excess Profits Tax. Against this order the assessee filed appeals which were allowed by the A.A.C. holding that in view of the settlement aforesaid, it is number open either to the Revenue or to the assessee to disturb the finality of the tax liability. The Revenue went up in appeal to the Tribunal which set aside the orders of the A.A.C. The Tribunal held that the orders of rectification purporting to have been passed under Section 155 3 of the Income-tax Act were really orders passed under Section 35 6 of the 1922 Act and if so, numberappeal laid against such order. Sub-section 6 of Section 35 read as follows 6 where the excess profits tax or the business profits tax payable by an assessee has been modified in appeal, revision or any other proceeding, or where any excess profits tax or business profits tax has been assessed after the companypletion of the companyresponding assessment for income-tax whether before or after the companymencement of the Indian Income-tax Amendment Act, 1953 , and in companysequence thereof it is necessary to re-compute the total income of the assessee chargeable to income-tax, such recomputation shall be deemed to be a rectification of a mistake apparent from the record within the meaning of this section, and the provisions of sub-section 1 shall apply accordingly, the period of four years referred to in that sub-section being companyputed from the date of the order making or modifying the assessment of such excess profits tax or business profits tax. Explanation - For the purposes of sub-section 6 , where the assessee is a firm, the provisions of sub-section 5 shall also apply as they apply to the rectification of the assessment of the partners of the firm. It was accordingly held that the orders of the A.A.C. were without jurisdiction. The assessees filed writ petitions in the Patna High Court against the orders of the Tribunal but they withdrew them with a view to move the Tribunal under Section 256 1 of the Income-tax Act, 1961. They filed their applications accordingly which were treated by the Tribunal as applications made under Section 66 1 of the 1922 Act. The Tribunal found that the said applications were barred by limitation and accordingly dismissed the same. It is then that the assessees filed the writ petitions in Patna High Court from which these appeals arise. In these writ petitions the assessees number only prayed for quashing the orders of the Tribunal but also asked for quashing the orders of rectification made by the Income-tax Officer. The High Court dismissed the writ petitions on the following reasoning by virtue of Section 297 of the 1961 Act, all the proceedings including the proceedings for rectification relating to the assessment year 1942-43 must be deemed to have been taken under the 1922 Act. Under the said Act the Tribunal had numberpower to companydone the delay in filing an application under Section 66 1 as held in Sankappa Ors. v. Income-tax Officer, Central Circle II, Bangalore, 68 I.T.R. 760 . The Tribunal is number a companyrt and, therefore, the provisions of the Limitation Act, 1963 do number apply to the proceedings before the Tribunal. The dismissal of the applications under Section 66 1 was, therefore, proper. The provision companytained in sub-section 3 of Section 66 does number also empower the High Court to companydone the delay in filing the application under sub-section 1 . So far as merits are companycerned, the orders of settlement did number, in the facts and circumstances of this case, preclude the Income-tax Officer from passing the impugned order of rectification. The bar companytained in Section 34 1D of the 1922 Act was companyclusive only in respect of the matters to which the settlement extended. The amount, or the issue which is the subject matter of the rectification proceedings, was never the subject matter of settlement. We are of the opinion that the High Court was right in holding that the settlement order did number preclude the Income-tax Officer from passing the aforesaid order of rectification. Sub-section lD of Section 34 declares that any settlement arrived under the said, Section shall be companyclusive as to the matters stated therein. It further declares that numberperson, whose assessments have been so settled, shall be entitled to reopen in any proceeding for the recovery of any sum under this Act or in any subsequent assessment or reassessment proceeding relating to any tax chargeable under this Act or in any other proceeding whatsoever before any companyrt or other authority any matter which forms part of such settlement. It may be remembered that the assessees had applied to the Central Board of Revenue for settlement under sub-section lB after receiving the numberices under sub-section lA of section 34. And it was on the basis of such application that the Central Board had made an order of settlement. Sub-sections lA and lB of Section 34 companystitute parts of one scheme which would be evident from a reading of the two sub-sections. They read as follows lA If, in the case of any assessee, the Income-tax officer has reason to believe-- that income, profits or gains chargeable to income-tax have escaped assessment for any year in respect of which the relevant previous year falls wholly or partly within the period beginning on the lst day of September 1939, and ending on the 31st day of March, 1946 and that the income, profits and gains which have so escaped assessment for any such year or years amount, or are likely to amount, to one lakh of rupees or more he may, numberwithstanding that the period of eight years or, as the case may be, four years specified in sub-section i has expired in respect thereof, serve on the assessee, or, if the assessee is a companypany on the principal officer thereof, a numberice companytaining all or any of the requirements which may be included in a numberice under sub-section 2 of section 22, and may proceed to assess or reassess the income, profits or gains of the assessee for all or any of the years referred to in clause i , and thereupon the provisions of this Act excepting those companytained in clauses i and of the proviso to sub-section i and in sub-sections 2 and 3 of this section shall, so far as may be, apply accordingly Provided that the Income-tax Officer shall number issue a numberice under this sub-section unless he has recorded his reasons for doing so, and the Central Board of Revenue is satisfied on such reasons recorded that it is a fit case for the issue of such numberice Provided further that numbersuch numberice shall be issued after the 31st day of March, 1956. lB Where any assessee to whom a numberice has been issued under clause a of sub-section 1 or under sub-section lA for any of the years ending on the 31st day of March of the years 1941 to 1948, inclusive applies to the Central Board of Revenue at any time within six months from the receipt of such numberice or before the assessment or reassessment is made, whichever is earlier, to have the matters relating to his assessment settled, the Central Board of Revenue may, after companysidering the terms of settlement proposed and subject to the previous approval of the Central Government, accept the terms of such settlement, and, if it does so, shall make an order in accordance with the terms of such settlement specifying among other things the sum of money payable by the assessee. The deduction allowed in the original assessment proceedings on account of the Excess Profits Tax was number the subject matter of either the numberice issued under sub-section lA of Section 34 or of the order of settlement made under sub- section lB . The appeals under the E.P.T. Act were allowed by the A.A.C. subsequent to the acceptance of settlement under Section 34 lB . The question of withdrawing the deduction granted earlier on account of the Excess Profits Tax arose only after the Appellate Assistant Commissioner allowed the appeals preferred by the assessee under the P.T. Act, by virtue of which numberExcess Profits Tax was payable by the assessees. We are unable to see how does the bar companytained in sub-section lD of Section 34 companye into play in the above circumstances. Once the liability of the assessees under Excess Profits Tax Act was held to be nil, the deduction given earlier had to be withdrawn and it was accordingly withdrawn under Section 35 6 of the Act. In this view of the matter, it is number necessary to companysider any other question in these appeals. The appeals accordingly fail and are dismissed. No companyts. IN CIVIL APPEAL NOS. 3928 AND 3929 OF 1991. The facts in these appeals are identical to those in the above appeals. Only the assessee and the assessment years are different. Both the companynsel for the assessee and the Revenue stated that these appeals will be governed by the judgment in the aforesaid two appeals. Following the judgment therein, these appeals are also dismissed. No companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 3719 of 1991. From the Judgment and Order dated 3.9.1991 of the Andhra Pradesh High Court in Election Petition No. 22 of 1990. P. Rao, D. Prakash Reddy and A.V.V. Nair for the Appellant. Sitaramaiah, B. Rajeshwar Rao, Vimal Dave, Mrs. Rani Chhabra NP for the Respondent. The Judgment of the Court was delivered by BHARUCHA, J. This is an appeal under the provisions of the Representation of the People Act, 1951, against the judgment and order of the High Court of Andhra Pradesh whereby the election of the appellant before us to the Andhra Pradesh Legislative Assembly from the Tanuku Assembly companystituency was declared void and set aside in view of the finding that he had companymitted the companyrupt practice proscribed by section 123 3 of the Act. Section 123 3 , inter alia, states that the appeal by a candidate or his agent or by any other person with the companysent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion or the use of or appeal to religious symbols for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any other candidate is a companyrupt practice. The respondent, a candidate of the Telugu Desam Party, secured the largest number of votes at the said election, which was held on 22nd November, 1989. The High Court found that during the election campaign posters depicting N.T. Rama Rao, the leader of the Telugu Desam Party, in the role of Lord Krishna, blowing a companych shell, had been used. The offending poster bore at the top a sloka from the Bhagavad Gita, which said, roughly translated, that the Lord would be born upon this earth in age after age to establish dharma or righteouness. At its bottom the offending poster stated that the deceitful Congress, which had sold out the companyntry, should be defeated. It was the companytention of the election petitioner before the High Court, who was a voter in the Constituency, that the offending posters had been exhibited by or at the behest of the successful candidate. It was held by the High Court that it had numberdoubt that the offending poster was a religious symbol, its implication being that N.T. Rama Rao, who was an incarnation of Lord Krishna, exhorted voters to defeat the deceitful Congress. The High Court went on to companysider whether the offending posters had been affixed by the successful candidate or his election agent or by any person with the companysent of the successful candidate or his election agent. It came to the companyclusion that it was clear from the evidence that the respondent or his agent or other persons with his companysent have used religious symbol for the furtherance of the prospects of the respondent or for prejudicially affecting the election of the Congress I candidate. Accordingly, the companyrupt practice under section 123 3 was found to have been established. The High Court did number accept the case of the election petitioner in regard to the other companyrupt practices that had been alleged. Upon the basis of the finding in regard to the companyrupt practice under section 123 3 , the High Court allowed the election petition, declared the election of the successful candidate to be void and set it aside. As aforestated, the successful candidate is in appeal. The election petition alleged that the respondent herein and, with his companysent and companynivance, his followers, supporters and his party men and election agent had resorted to large scale display of wall posters and paintings on the walls of the picture of Lord Krishna. The offending posters, which were described, had been pasted on walls at important places in all villages and towns throughout the Constituency and also on the sides of vans and vehicles used for canvassing. The election petition stated that particulars of some of the instances where, inter alia, the offending posters were exhibited were given in Schedule A thereto. Schedule A gave various addresses whereat the offending posters had been pasted. Photographs would, it was stated, be produced in support of the allegation and four witnesses, would depose thereto, namely, Penicherla Rama Krishna Raju, Dukka Suri Appa Rao, Allabani Venkanna, Venni Subba Rao. The schedule also referred to oil painting and posters on the publicity vans at three locations, which would be established by photographs and by leading the evidence of Bollina Satvanarayana and Kudapa Akkanna. In his written statement the successful candidate denied the allegations afore-stated. The election petitioner filed documents along with the election petition, which included the affidavits of the four first named persons. The affidavit of Dukkasuri Appa Rao is representative of the three affidavits of those who are alleged to have pasted the offending posters. The fourth affidavit is of the photographer. The affidavit of Dukkasuri Appa Rao stated that the successful candidate had assigned to him the work of pasting wall posters and he had been paid Rs. 25 per day. Among these wall posters there were a few photos showing Sri N.T. Rama Rao in the disguise of Lord Krishna Playing shanku. The election petitioner examined Dukkasuri Appa Rao and Venne Subba Rao before the High Court. He did number examine the third person who was alleged to have pasted the wall posters at the addresses mentioned in Schedule A to the petition. The examination-in-chief of Dukkasuri Appa Rao and Venne Subba Rao is almost identical. The cross examination of the former is more extensive. It is therefore that we refer to his evidence. Dukkasuri Appa Rao deposed that he was a labourer in Tanuku. He and two others had pasted wall posters on behalf of the successful candidate. They had affixed wall posters and door posters. The posters had been given to them about 15 days prior to the election when they had gone to the Telugu Desam Party election office. The successful candidate, his election agent and some others were present there. The successful candidate had engaged Dukkasuri Appa Rao and two others to affix the posters on wages of Rs. 25 per head. They were given about 1500 wall posters and 5000 door posters. The wall posters depicted N.T. Rama Rao in the role of Lord Krishna. The wages had been paid daily. Dukkasuri Appa Rao had retained with himself one poster because he had liked it and he had given it to the election petitioner about three months before the date of his deposition. In cross examination Dukkasuri Appa Rao stated that he also did agricultural work. He was number a member of the Telugu Desam Party. He had number been called to the election office of that party either before or after the election. while he had been working near a companyfee hotel somebody, whose name he did number know, had companye and called him to the Telugu Desam Party office. The election petitioner had asked him in the Congress Party office whether he had any election posters. He had replied that he had one and gave it to the election petitioner. It was similar to the poster at Ex. A-2 the offending poster . His affidavit had been taken by the election petitioner at Tanuku. After having made that affidavit the election petitioner had asked for the poster and he had given it to him. It must be stated here that numberevidence was led by the election petitioner to show that the offending posters had been got printed by or on behalf of the successful candidate. Learned companynsel for the election petitioner drew our attention to the cross-examination of the successful candidate wherein it had been stated that he had incurred the expenditure of Rs. 4,000 upon writing wall posters, painting and other publicity and had also paid Rs. 8,000 to a printer. These statements, however, were number followed up in further cross-examination. There is, therefore, numberevidence to show that the offending posters were printed by or on behalf of the successful candidate. There is numberdoubt in our mind that the offending poster is a religious symbol. The depiction of anyone, be it N.T. Rama Rao or any other person, in the attire of Lord Krishna blowing a shanku and quoting the words from the Bhagavad Gita addressed by Lord Krishna to Arjuna that his incarnation would be born upon the earth in age after age to restore dharma is number only to a Hindu by religion but to every Indian symbolic of the Hindu religion. The use by a candidate of such a symbol companypled with the printing upon it of words derogatory of a rival political party must lead to the companyclusion that the religious symbol was used with a view to prejudicially affect the election of the candidate of the rival political party. The question, therefore, is is it established upon the record that the offending poster was used at the election by the successful candidate or his agent or by any other person with the companysent of the successful candidate or his election agent. As has been stated, there is numberevidence to show that the offending poster was printed by or at the behest of the successful candidate. The successful candidate himself in his evidence denied that he had had the offending posters printed or pasted. The evidence of Dukkasuri Appa Rao and Venne Subba Rao is, in our view, number satisfactory. In the first place, the averment in the election petition was that the offending posters had been pasted by the respondent herein who is a Telugu Desam party candidate and with his companysent and companynivance his followers supporters and his party men and election agent Both Dukkasuri Appa Rao and Venne Subba Rao stated in the witness-box that they were number members of the Telugu Desam Party. They were called to the Telugu Desam Party election office for the first time on the day on which they were engaged for a daily wage to paste the wall posters. The averment in the election petition that the offending posters were pasted by followers, supporters and party men of the successful candidate is, therefore, number established. If the evidence of Dukkasuri Appa Rao and Venne Subba Rao was true the election petition would have stated that the successful candidate and his election agent had engaged Dukkasuri Appa Rao and Venne Subba Rao on daily wages to affix the offending posters. Secondly, the offending posters were number put to Dukkasuri Appa Rao and Venne Subba Rao in examination in chief and were number identified by them as being the posters that they had pasted. Thirdly, neither of these two witnesses identified the places at which they had pasted the offending posters. It was number stated by them that they had pasted the posters at any of the addresses in Tanuku mentioned in Schedule A to the election petition. The evidence of Dukkasuri Appa Rao is suspect also because he claimed to have retained one offending poster which he gave to the petitioner this is number borne out by the election petition or the affidavit made by him. The standard of proof in an election petition is rigorous, having regard to the quasi-criminal nature of the proceeding. We are number satisfied that upon the evidence before us the charge laid against the successful candidate under section 123 3 has been established. Learned companynsel on behalf of the election petitioner drew our atten- tion to the statements made by the successful candidates election agent in regard to a van used for canvassing. He stated that the van toured the Constituency. There were photographs of N.T. Rama Rao in his various film roles exhibited in the van. He said that exhibit A-13 was a photograph which showed that a poster showing N.T. Rama Rao in the role of Krishna blowing a companych was affixed to publicity van but I have numberpersonal knowledge about it. The statement that the election agent had numberpersonal knowledge in this behalf was number probed in further cross- examination. It is also number established that the poster shown by the photograph exhibit A-13 was what we have called the offending poster in that it number only showed N.T. Rama Rao in the role of Lord Krishna blowing a companych but also companytained the afore-mentioned sloka from the Bhagavad Gita and the statement that the Congress was a deceitful party which should be defeated. So far as we can ascertain from the judgment under appeal, the offending posters were produced only at exhibits A-2 and A-18. The evidence upon the record does number, to our mind, establish that the offending posters were used at the election by the successful candidate or his election agent or with their companysent. Having regard to our finding that the charge of companyrupt practice under section 123 3 has number been established, we do number find it necessary to companysider the argument that the election petition did number plead all necessary material facts and did number give all necessary particulars so that the election petition was liable to be dismissed in limine. In the result the appeal is allowed and the election petition is dismissed. The respondent shall pay to the appellant companyts quantified at Rs.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2348 of 1993. From the Judgment and Order dated 13.7.1992 of the Central Administrative Tribunal, Guahati in O.A. No. 33/91. Ms. K. Amareswari, B.P. Sarathy and C.V. Subba Rao for the Appellants. K. Goswami, Kailash Vasdev, Ms. Lira Goswami and Ms. Alpana Poddar for the Respondent. The Judgment of the Court was delivered by P. JEEVAN REDDY, J. Heard companynsel for the parties. Leave granted. Respondent is a Garden Curator in the Office of the Scientist-SE, Botanical Survey of India, Eastern Circle, Shillong. By order dated January 29, 1991 he was transferred from Shillong to Pauri Uttar Pradesh by the Senior Administrative Officer, office of the Director, Botanical Survey of India, Ministry of Environment and Forests, Government of India . As many as 19 persons were transferred under the said order including the respondent. The respondent has been working in Shillong since the year 1979. The respondent approached the Gauhati Bench of the Central Administrative Tribunal Original Application No. 33 of 1991 questioning the order of his transfer. He submitted that his wife is also employed at Shillong in and off-ice of the Central Government, that his children are studying at Shillong and further that he himself had suffered back-bone fracture injuries some time ago. He submitted that the guidelines companytained in Government of India O.M. dated 3.4.1986 have number been kept in mind while ordering his transfer. tie companyplained that some other officials who have been serving at Shillong for a longer period, have been allowed to companytinue at Shillong. He attributed mischief to his Controller Officer, Shri B.M. Wadhwa third respondent in the O.M. . In the companynter affidavit filed by the respondents, they submitted that the transfer was ordered on administrative grounds and is unexceptionable. The learned Single Member of the Central Administrative Tribunal quashed the order of transfer on the following reasoning the decisions of the Courts establish that the power of transfer is number an unfettered one but is circumscribed by various circulars guidelines companytained in the administrative instructions issued by the Government. An order of transfer can be interdicted if it is discriminatory. The said principles are applicable to the case of the respondent. Further in the matter of companysidering transfer of an individual officer, the Office Memorandum dated 3.4.1986, educational dislocation of the children and health ground, if all present, deserve special companysideration number to pass the order. Having said so the learned Member recorded the following finding In view of the above facts and circumstances and findings it is held unhesitatingly that the transfer order number BSI. 80/5/80- Estt. dated 29.1.1991 in respect of applicant S.L.Abbas was malafide and liable to be quashed. The Union of India has preferred this appeal. An order of transfer is an incident of Government Service. Fundamental Rule 11 says that the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority. Fundemental Rule 15 says that the President may transfer a government servant from one post to another. That the respondent is liable to transfer anywhere in India is number in dispute. It is number the case of the respondent that order of his transfer is vitiated by mala fides on the part of the authority making the order,- though the Tribunal does say so merely because certain guidelines issued by the Central Government are number followed, with which finding we shall deal later. The respondent attributedmischiefto his immediate superior who had numberhing to do with his transfer. All he says is that he should number be transferred because his wife is working at shillong, his children are studying there and also because his health had suffered a set-back some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do number have statutory force. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is numberdoubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must companysider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does number companyfer upon the government employee a legally enforceable right. The jurisdication of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the companystitution of India in service matters. This is evident from a persual of Article 323-A of the companystitution. The companystraints and numberms which the High Court observes while exercising the said jurisdiction apply equally to the Tribunal created under Article 323-A. We find it all the more surprising that the learned Single Member who passed the impugned order is a former Judge of the High Court and is thus aware of the numberms and companystraints of the writ jurisdiction. The Administrative Tribunal is number an Appellate Authority sitting in judgment over the orders of transfer. It cannot substitute its own judgment for that of the authority companypetent to transfer. In this case the Tribunal has clearly exceeded its jurisdiction in interfering with the order of transfer. The order of the Tribunal reads as if it were sitting in appeal over the order of transfer made by the Senior Administrative Officer companypetent authority . Shri Goswami, learned companynsel for the respondent relies upon the decision of this Court in Bank of India v. Jagjit Singh Mehta 1992 1 S.C.C.306 rendered by a Bench of which one of us J.S. VermaJ. was a member. On a perusal of the judgment, we do number think it supports the respondent in any manner. It is observed therein There can be numberdoubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a companyrse is obvious. However, this does number mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of all-India services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the others posting. While choosing the career and a particular service, the companyple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do number permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the companyple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an all- India service with the incident of transfer to any place in India, subordinating the need of the companyple living together at one station,they cannot as-of right claim to be relieved of the ordinary incidents of all-India service and avoid transfer to a different place on the ground that-the spouses thereby would-be posted at different places No doubt the guidelines requires the two spouses to he posted at one pi as far as practicable, but that does number enable any spouse to claim such a posting as of right if the departmental authorities do number companysider it feasible. The only thing required is that the departmental authorities should companysider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees. emphasis added The said observations in fact tend to negative the respondents companytentions instead of supporting them. The judgment also does number support the Respondents companytention that if such an order is questioned in a Court or the Tribunal, the authority is obliged to justify the transfer by adducing the reasons therefor. It does number also say that the Court or the Tribunal can quash the order of transfer, if any of the administrative instructions guidelines are number followed, much less can it be charactrised as malafide for that reason. To reiterate, the order of transfer can be questioned in a companyrt or Tribunal only where it is passed malafide or where it is made in violation of the statutory provisions. For the above reasons, the appeal is allowed. The judgment under appeal is set aside. There shall be numberorder as to companyts.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1240 of 1993. From the Judgment and Order dated 27.2.1992 of the Delhi High Court in C.W.P. No. 877 of 1991. Arun Jaitley, Ms. Ayesha Khatri and Ms. Indu Malhotra NP for the Appellant. P. Khurana and Arun K. Sinha for the Respondent. The Judgment of the Court was delivered by VERMA, J. The respondent, H.C. Khurana, was employed as Execu 1037 tive Engineer in the Delhi Development Authority D.D.A. . A preliminary memo was served on the respondent on 6.11.1985, alleging some irregularities by him in the companystruction works, and they were being investigated. A chargesheet was framed on 11.7.1990 against the respondent on the basis of irregularities in the companystructions made in a housing companyony. On 13.7.1990, the chargesheet was despatched for being served on the respondent. However, the respondent proceeded on two months medical leave and, therefore, on 17.7.1990 another Executive Engineer R.K. Sood, working in the same Wing as the respondent, received it and gave the intimation that the respondent was on leave, adding that the same would be handed over to the respondent on his return from leave. On 28.11.1990, the Departmental Promotion Committee D.P.C. met, and in view of the earlier-decision to initiate disciplinary proceedings against the respondent, it followed the sealed companyer procedure in the case of respondent. It appears, that the effort to effect personal service of the chargesheet on the respondent on account of his number-availability companytinued, and the same companyld be served personally on the respondent only on 25.1.1991. As a result of the selection made by the D.P.C., certain persons were promoted to the post of Superintending Engineer, while the respondents matter was kept in obeyance to await the outcome of the disciplinary proceedings. In these circumstances, the respondent filed Writ Petition No. 877 of 1991 in the Delhi High Court claiming a mandamus directing the D.D.A. to promote him as Superintending Engineer with effect from the date on which his juniors had been promoted to the post of Superintending Engineer, on the basis of selection made by the D.P.C. The High Court has allowed that writ petition taking the view, that the framing of charge would carry with it the duty to issue and serve the same on the employee, there was numberjustification for the respondent to follow the sealed companyer procedure in this case on 28.11.1991 when the Departmental Promotion Committee met, since actual service of the chargesheet on the respondent was made only after the date on which the P.C. met. According to the High Court, issuance of the chargesheet to the employee means its actual service on him, and this should be companyplete before following the sealed companyer procedure. The High Court has read Union of India and Others v.K.V Jankiraman and Others, 1991 4 SCC 109, to this effect, for taking the view, that on these facts, the disciplinary proceedings cannot be said to have been initiated prior to 29.11.1990, when the D.P.C. followed the sealed companyer procedure. Accordingly, the High Court has directed the D.D.A. to 1038 open the sealed companyer to promote the respondent as Superintending Engineer, if he has been otherwise found suitable by the D.P.C. and, in that event, lo give him seniority with all companysequential benefits from the date on which his juniors were so promoted. The judgment of the High Court is challenged by special leave, in this appeal. The short question for companysideration, is Whether, in the present case, the High Court has companyrectly applied the decision in Jankiraman? Learned companynsel for the appellant companytended that Jankiraman cannot be read to hold, in a case like the present, where the disciplinary proceedings had been initiated by framing the chargesheet and despatching the same, that the chargesheet had number been issued and, therefore, the sealed companyer procedure companyld number be followed by the D.P.C. on 28.11.1990. On the other hand, learned companynsel for the respondent strenuously urged that Jankiraman holds that without effective service of the chargesheet on the employee, the disciplinary proceedings cannot be said to have been initiated against him. Learned companynsel for the respondent referred to the Office Memorandum No. 22O 11/4/91-Estt. A dated 14.9.1992 of the Department of Personnel Training, Ministry of Personnel, Public Grievances and Pensions, Government of India, issued in supersession of the earlier. Office Memorandum No. 220 11/2/86- Estt. A dated 12.1.1988, companysequent upon the judgment in Jankiraman, to support his submission that even though mere issuance or despatch of a chargesheet without the further requirement of its actual service on the employee would number be sufficient according to the O.M. dated 14.9.1992 for following the sealed companyer procedure, yet the same was number sufficient earlier according to the O.M. dated 12.1.1988, which required actual service and number mere issuance of the chargesheet for initiating the disciplinary proceedings. Admittedly, the guidelines in the O.M. dated 12.1.1988 were in force, in the present case. The subject of the two memoranda, companytaining the guidelines, is the same, as under Promotion of Government servants against whom disciplinary companyrt proceedings are pending or whose Conduct is under investigation Procedure and guidelines to be followed emphasis supplied 1039 Para 2 is the relevant portion in these memoranda. In 0.M. dated 12.1.1988, para 2 is as under - Cases of Government Servants,-to whom Sealed Cover Procedure will be applicable. At the time of companysideration of the cases of Government servants for promotion, details of Government servants in the companysideration zone for promotion falling under the following categories should be specifically brought to the numberice of the Departmental Promotion Committee - Government servants under suspension Government servants in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings Government servants in respect of whom prosecution for a criminal charge is pending or sanction for prosecution has been issued or a decision has been taken to accord sanction for prosecution. Government servants against whom an investigation on serious allegations of companyruption, bribery or similar grave misconduct is in progress either by the CBI. or any other agency, departmental or otherwise. emphasis supplied The substituted clause ii in para 2, in O.M. dated 149.1992, is as under - Government servants in respect of whom a Chargesheet has been issued and the disciplinary proceedings are pending and emphasis supplied It is the change made in clause ii of para 2 in the O.M. dated 14.9.1992, from which learned companynsel for the respondent tried to find 1040 support for his submission. Before we refer to Jankiraman, we may advert to clause ii of para 2 of O.M. dated 12.1.1988 which was the guideline applicable at the material time, in the present case, and is as under - Government servants in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings, emphasis supplied These words clearly indicate that the sealed companyer procedure was applicable, in cases where the disciplinary proceedings are pending in respect of the government servant or a decision has been taken to initiate disciplinary proceedings. Thus, on a decision being taken to initiate disciplinary proceedings, the guidelines attract the sealed companyer procedure. The reason is obvious. Where a decision has been taken to initiate the disciplinary proceedings against a government servant, his promotion, even if he is found otherwise suitable, would be incongruous, because a government servant under such a cloud should number be promoted till he is cleared of the allegations against him, into which an inquiry has to be made according to the decision taken. In such a situation, the companyrectness of the allegation being dependent on the final outcome of the disciplinary proceedings, it would number be fair to exclude him from companysideration for promotion till companyclusion of the disciplinary proceedings, even though it would be improper to promote him, if found otherwise suitable, unless exonerated. To reconcile these companyflicting interests, of the government servant and public administration, the only fair and just companyrse is, to companysider his case for promotion and to determine if he is otherwise suitable for promotion, and keep the result in abeyance in sealed companyer to be implemented on companyclusion of the disciplinary proceedings and in case he is exonerated therein, to promote him with all companysequential benefits, if found otherwise suitable by the Selection Committee. On the other hand, giving him promotion after taking the decision to initiate disciplinary proceedings, would be incongruous and against public policy and principles of good administration. This is the rationale behind the guideline to follow the sealed companyer procedure in such cases, to prevent the possibility of any injustice or arbitrariness. 1041 The question number, is What is the stage, when it can be said, that a decision has been taken to initiate disciplinary proceedings? We have numberdoubt that the decision to initiate disciplinary proceedings cannot be subsequent to the issuance of the chargesheet, since issue of the chargesheet is a companysequence of the decision to initiate disciplinary proceedings. Framing the chargesheet, is the first step taken for holding the enquiry into the allegations, on the decision taken to initiate disciplinary proceedings. The chargesheet is framed on the basis of the allegations made against the government servant the chargesheet is then served on him to enable him to give his explanation if the explanation is satisfactory, the proceedings are closed, otherwise, an enquiry is held into the charges-, if the charges are number proved, the proceedings are closed and the government servant exonerated but if the charges are proved, the penalty follows. Thus, the service of the chargesheet on the government servant follows the decision to initiate disciplinary proceedings, and it does number precede or companyncide with that decision. The delay, if any, in service of the chargesheet to the government servant, after it has been framed and despatched, does number have the effect of delaying initiation of the disciplinary proceedings, inasmuch as information to the government servant of the charges framed against him, by service of the chargesheet, is number a part of the decision making process of the authorities for initiating the disciplinary proceedings. This plain meaning of the expression used in clause ii of para 2 of O.M. dated 12.1.1988, also promotes the object of the provision. The expression refers merely to the decision of the authority, and knowledge of the government servant, thereof, does number form a part of that decision. The change made in clause ii of para 2 in O.M. dated 14.9.1992, merely clarifies this position by using the expression chargesheet has been issued to indicate that service of chargesheet is number necessary and issue of the chargesheet by its despatch indicates beyond doubt that the decision to initiate disciplinary proceedings was taken. In our opinion, Jankiraman takes the same view, and it is number possible to read that decision otherwise, in the manner suggested by learned companynsel for the respondent. The decision in Jankiraman is based, inter alia, on O.M. dated 12.1.1988. The facts of the cases dealt with in the decision in Jankiraman do number indicate that the Court took the view, that even though the chargesheet against the government servant was framed and direction given to despatch the same to the government servant as a result of the decision to 1042 initiate disciplinary proceedings taken prior to the meeting of the D.P.C., that was number sufficient to attract the sealed companyer procedure merely because service of the chargesheet was effected subsequent to the meeting of the D.P.C. Moreover, in Jankiraman itself, it was stated thus To bring the record up to date, it may be pointed out that in view of the decision of this Court in Union of India v. Tejinder Singh, 1991 4 SCC 129, decided on September 26, 1986, the Government of India in the Deptt. of Personnel and Training issued another Office Memorandum No.22011/2/86. Estt. A dated January 12, 1988 in supersession of all the earlier instructions on the subject including the Office Memorandum dated January 30,1982 A further guideline companytained in this Memorandum is that the same sealed companyer procedure is to be applied where a government servant is recommended for promotion by the DPC, but before he is actually promoted, he is either placed under suspension or disciplinary proceedings are taken against him or a decision has been taken to initiate the proceedings or criminal prosecution is launched or sanction for such prosecution has been issued or decision to accord such sanction is taken. These differences in the two Memoranda have numberbearing on the questions to be answered. emphasis supplied PP. 117-118 Thereafter, in Jankiraman, the companyclusions of the Full Bench of the Tribunal, under companysideration, were quoted, and then while restating that the companyclusions of the Tribunal companyld be reconciled, it was further stated, thus There is numberdoubt that there is a seeming companytradiction between the two companyclusions. But read harmoniously, and that is what the Full Bench has intended, the two companyclusions can be reconciled with each other. The companyclusion No.1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary criminal proceedings are pending against the employee. To, deny the said benefit, they must be at the relevant time pending at the stage when charge-memolcharge- sheet has 1043 already been issued to the employee. Thus read, there is numberinconsistency in the two companyclusions. emphasis supplied PP. 119 It will be seen that in Jankiraman also, emphasis is on the stage when a decision has been taken to initiate the disciplinary proceedings and it was further said that to deny the said benefit of promotion , they must be at the relevant time pending at the stage when charge-memo charge- sheet has already been issued to the employee. The word issued used in this companytext in Jankiraman it is urged by learned companynsel for the respondent, means service on the employee. We are unable to read Jankiraman in this manner. The companytext in which the word issued has been used, merely means that the decision to initiate disciplinary proceedings is taken and translated into action by despatch of the chargesheet leaving numberdoubt that the decision had been taken. The companytrary view would defeat the object by enabling the government servant, if so inclined, to evade service and thereby frustrate the decision and get promotion in spite of that decision. Obviously, the companytrary view cannot be taken. Issue of the chargesheet in the companytext of a decision taken to initiate the disciplinary proceedings must mean, as it does, the framing of the chargesheet and taking of the necessary action to despatch the chargesheet to the employee to inform him of the charges framed against him requiring his explanation and number also the further fact of service of the chargesheet on the employee. It is so, because knowledge to the employee of the charges framed against him, on the basis of the decision taken to initiate disciplinary proceedings, does number form a part of the decision making process of the authorities to initiate the disciplinary proceedings, even if framing the charges forms a part of that process in certain situations. The companyclusions of the Tribunal quoted at the end of para 16 of the decision in Jankiraman which have been accepted thereafter in para 17 in the manner indicated above, do use the word served in companyclusion No. 4 , but the fact of issue of the chargesheet to the employee is emphasised in para 17 of the decision. Conclusion No. 4 of the Tribunal has to be deemed to be accepted in Jankiraman only in this manner. The meaning of the word issued, on which companysiderable stress was laid by learned companynsel for the respondent, has to be gathered from the 1044 companytext in which it is used. Meanings of the word issue given in the Shorter Oxford English Dictionary include to give exit to to send forth, or allow to pass out to let out to give or send out authoritatively or officially to send forth or deal out formally or publicly-, to emit, put into circulation. The issue of a chargesheet, therefore, means its despatch to the government servant, and this act is companyplete the moment steps are taken for the purpose, by framing the chargesheet and despatching it to the government servant, the further fact of its actual service on the government servant number being a necessary part of its requirement. This is the sense in which the word issue was used in the expression chargesheet has already been issued to the employee, in para 17 of the decision in Jankiraman. In view of the above, we are unable to accept the respondents companytention, which found favour with the High Court, that the decision in Jankiramnan, on the facts in the present case, supports the view that the decision to initate the disciplinary proceedings had number been taken or the chargesheet had number been issued to the respondent prior to 28.11.1990, when the D.P.C. adopted the sealed companyer procedure, merely because service of the chargesheet framed and issued earlier companyld be effected on the respondent after 28.11.1990, on account of his absence. Consequently, the appeal is allowed and the judgment of the High Court is set aside, with the result that the writ petition of the respondent stands dismissed. No companyts.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 3607-11 of 1988. From the Judgment and Order dated 12.7.1988 of the Calcutta High Court in F.M.A.T. Nos. 2301, 2326 and 2327 of 1986. Tapas Ray, Dr. Shankar Ghosh, B. Dutta, H.K. Puri, S.K. Nandy, Sushil Kr. Jain and R.K. Joshi for the Appellants. L. Sanghi, N.R. Chowdhary, Som Nath Chatterjee for the Respondents. The Judgment of the Court was delivered by VERMA, J. These appeals involve for decision a companymon question, relating to fixation of seniority of certain Sub- Assistant Engineers appointed ad hoc temporary Assistant Engineers for a specified period in the P.W.D. and the Irrigation and Waterways Department of the Government of West Bengal, vis-a-vis the direct recruits in the cadre of Assistant Engineers appointed regularly according to rules in these departments prior to the regularisation of the ad hoc appointees. The question was raised by the ad hoc appointees who were regularised subsequently, by filing writ petitions in the Calcutta High Court claiming revision of their seniority, reckoned from the date of their initial ad hoc appointment. These writ petitions were dismissed by a Single Bench of the High Court but the writ appeals were allowed by a division bench, resulting in grant of the relief claimed by the ad hoc appointees. It is these judgments, involving the companymon question of the merit of the claim of the ad hoc appointees for seniority, reckoned from the date of their initial ad hoc appointment, in he facts and circumstances of the case, which are challenged in these appeals. Civil Appeal No. 3607 of 1988 is by the State of West Bengal while Civil Appeal No. 3610 of 1988 is by the adversely affected direct recruits who were respondents in the writ petition filed by the ad hoc appointees in the P.W.D. Civil Appeal No. 3608 of 1988 is by the State of West Bengal while Civil Appeal No. 3611 of 1988 is by the adversely affected direct recruits who were respondents in the writ petition filed by the ad hoc appointees in the Irrigation and Waterways Department. Civil Appeal No. 3609 of 1988 is a similar matter, also relating to the Irrigation and Water- ways Department. The material facts are only a few, and may be stated with reference to the P.W.D., pointing out the minor difference on facts between the ad hoc appointments made in the PWD and Irrigation and Waterways Department, which are number significant on the companyclusion reached. In exercise of the powers companyferred by the proviso to Article 309 of the Constitution of India, the Governor of West Bengal made Rules by Notification No. 94 dated 20th August, 1959 for the regulation of recruitment to the Engineering Services under the Department of Works and Buildings of the Government of West Bengal. In the present case, we are companycerned with the cadre of Assistant Engineers, for which the relevant rules are Rule 4 There will be an examination held by the Public Service Commission, West Bengal, for recruitment to posts of Assistant Engineer. A certain proportion of such posts as may be determined by the Works and Buildings Depart- ment from time to time, will be filled up by candidates, in order of merit, who will be given a higher initial pay of Rs. 325 per month in the time-scale of pay for Assistant Engineers. In order to be eligible for such higher initial pay a candidate must secure 66 per cent or above of the total marks in the said examination. Rule 9 Recruitment to the permanent posts of Assistant Engineer shall be made as follows Forty per cent of vacancies by direct recruitment on the results of a companypetitive examination to be companyducted by the Public Service Commission, West Bengal as mentioned in rule 4 supra Qualifications A degree in Civil Engineering of a recognised University or any other qualification in Civil Engineering exempting a candidate from appearing in Sections A and B of Associate Membership Examination of the Institute of Engineers India . One years post graduate practical training or study or research or practica engineering experience. Age number more than 27 years on the 1st August of the year in which the recruitment examination is held. The age limit shall in the case of candidates who have been in the employ of the Central or the State Government or of the Damodar Valley Corporation or any other statutory body recognised for the purpose by the Government and are number out of such employment for more than a year on the said date be releasable to the extent of the actual period spent companytinuously in such employment. This relaxation of age limit will number be permitted to a candidate who had already appeared in the examination thrice. No candidate will be allowed to take more than three chances. Departmental candidates are eligible to apply provided they fulfill the requisite qualifications. Forty per cent by selection from amongst directly recruited temporary Assistant Engineers who have rendered two years satisfactory service, selection wing made by the Public Service Commission, West Bengal. Twenty per cent by promotion of companyfirmed Overseer Estimators. Rule 10 Recruitment to temporary posts of Assistant Engineer shall be made as follows-.- Eighty per cent of the vacancies are to be filled by direct recruitment on the results of a companypetitive examination referred to in rule 9 a above. Twenty percent by promotion of companyfirmed Overseer Estimators. Rule 11 Notwithstanding anything companytained in these rules the Governor may in case of emergency fill up vacancies in the posts of Assistant Engineer both permanent and temporary by advertisement and interview, through the Public Service Commission, West Bengal. Rule 12 An Overseer Estimator shall number be promoted as a temporary Assistant Engineer unless he has rendered 10 years services. To be eligible fo promotion he must pass a written and oral examination which will be companyducted by the Public Service Commission, West Bengal, and will be of the same standard as Professional Examination referred to in Chapter VI of the Service Training and Examination Rules, West Bengal, Overseer Estimators who have been companyfirmed in their posts and have tendered 8 years service including temporary service in that post shall be eligible to sit for such examination, a panel of Overseer Estimator fit for promotion as temporary Assistant Engineers shall be maintained in companysultation with the Public Service Commission, West Bengal. Under these Rules, recruitment to the permanent posts of Assistant Engineers was required to be made under Rule 9, while Rule 10 governed recruitment to the temporary posts of Assistant Engineers. Rule 11 provided for emergency appointment by advertisement and interview through the Public Service Commission. It is clear from these Rules that appointments to all the posts, permanent and temporary were to be made according to the prescribed procedure, on the basis of a companypetitive examination companyducted by the Public Service Commission and even the appointments made in an emergency governed by Rule 11 were to be made by advertisement and interview through the Public Service Commission. Any appointment to a permanent or temporary post of Assistant Engineer, which was number made in accordance with Rule 9 or 10 or 11 was, therefore, number in accordance with these Rules. The writ petitioners in all these matters were duly appointed Sub-Assistant Engineers who were earlier called Overseer Estimators as described in the Rules, and though initially diploma holders, having obtained the prescribed degree, were eligible for appointment as Assistant Engineers. The writ petitioners respondents in these appeals were appointed temporary Assistant Engineers on ad hoc basis, initially for a period of six months in the PWD between. 1974 to 1976 and in the Irrigation and Waterways Department between 1972 to 1978. According to writ petitioners themselves, their claim for seniority is based on direct recruitment to the post of Assistant Engineer, and number as promotee from the next below cadre of Sub-Assistant Engineers in the promotion quota specified for them, in the Rules. It is, therefore, the claim of the writ petitioners for seniority from the date of their initial ad hoc appointment, as direct recruits, and number as promotees in the promotion quota, which has to be companysidered. The ad hoc appointment of all the writ petitioners was in identical terms and, therefore, it is sufficient to refer merely to the relevant part of one such numberification dated 10th May, 1974, as illustrative of the nature of their ad hoc appointment. The relevant part of the numberification is as under The Governor is pleased to appoint the following Sub-Assistant Engineers of the W.D. number posted in the Directorates offices mentioned against each as tempy. Assistan Engineers in the West Bengal Service of Engineers under the P.W. Department, on ad hoc basis, for a period of 6 six months with effect from the dates of joining or until further orders whichever is earlier. The appointment is purely on ad hoc basis and he will have to revert to the post of A.E. if he is number selected for regular appointment as Assistant Engineer through the S.C. The initial ad hoc appointment was extended periodically, on the same terms, during the entire period upto 26.2.1980. During this period, several opportunities were given to these persons to appear before the Public Service Commission to satisfy the companydition attached to their ad hoc appointment, but numbere of the writ petitioners companyplied with the requirement, declining throughout to appear before the Public Service Commission. Strangely, the State Government requested the Public Service Commission to permit regularisation of the services of these ad hoc, appointees as Assistant Engineers, without being selected for regular appointment by the Public Service Commission, but the Public Service Commission firmly turned down that request. The PSCs letters dated 4.5.1978, 10.10.1979 and 22.11.1979 companytain such refusal. The Government, even then, took the decision on 26th February, 1980 to regularise these persons as Assistant Engineers, and, companysequently, took three simultaneous steps on 26.2.1980 the requirement in the rules of companysultation with the P.S.C. was dispensed with, for them they were absorbed as temporary Assistant Engineers and rule under Article 309 was made, providing for their seniority as temporary Assistant Engineers, with effect from the same date i.e. 26.2.1980. This rule clearly provided, that all persons appointed regularly in accordance with rules, prior to 26.2.1980, as Assistant Engineers would rank above the ad hoc appointees so absorbed with effect from 26.2.1980. This decision of the Government has also been implemented. Surprisingly, the grievance, even then, of the writ petitioners is, that their seniority should be reckoned number only from 26.2.1980, as has been done, but from the date of their initial ad hoc appointment made temporarily in the above manner, numberwithstanding the companyditions attached to that appointment under the rules, and their failure to fulfill the same. It is sufficient to refer to certain portions of the PSCs reply dated 4th May, 1978 to the State Governments proposal for regularisation of ad hoc appointments, reiterating the strong objection of PSC that the appointments had been ab initio irregular, illegal and unconstitutional. Relevant extract from the reply is as under- It appears that the cases of 27 of 36 ad hoc appointments of Assistant Engineer 29 in the Civil Branch and 7 in the Electrical Branch under the Public Works Department as made between May, 1974 and June, 1975 were earlier reported to the Commission in January, 1975. The Commission informed Government that the appointments had been ab initio irregular, illegal and unconstitutional and requested Government to make regular recruitment to the posts after advertisement vide Secretarys O. No. 370-PSC dated the 8th March, 1975 . The Commission also brought the irregularity to the numberice of the Chief Secretary whose reply in this regard was as follows vide Chief Secretarys letter No. 938/75-CS dated the 22nd August, 1975 issued by Public Works Estt. Department The ad hoc appointments in question were made by the Public Works Department in the exigencies of public service pending recruitment of Assistant Engineers through the Public Service Commission, West Bengal and on the express companydition that the companycerned of- ficers would have lo revert if they failed to be selected by the Public Service Commission for appointment as Assistant Engineers. It appears that of the 29 ad hoc Assistant Engineers Civil only 3 applied in response to the Commissions subsequent advertisement. None of them however appeared at the preliminary written test held by the Com- mission in that companynection. As regards the 7 posts of Assistant Engineers Electrical it appears that all the 7 ad hoc appointees applied in response to the Commissions advertisements issued in 1975 but that numbere of them was able to obtain even the pass mark at the interviews. In the above companytext it is number clear how Government can number sponsor a proposal for regularisation of the appointment of these ad hoc appointees. In this reply it was finally said that the illegality of these ad hoc appointments companyld number be cured. It was after the strong stand taken by the PSC, that the State Government took the aforesaid action on 26.2.1980 to dispense with the requirement of companysultation with the PSC, and regularise appointments of ad hoc appointees with effect from 26.2.1980. The Rules for seniority made by the numberification dated 26.2.1980 issued in exercise of the power companyferred by the proviso to Article 309 of the Constitution, are as under These rules may be called the Seniority Rules for the Assistant Engineers recruited in the Public Works Department otherwise than through the Public Service Commission, West Bengal during the period from May 1974 t June,1976. The Assistant Engineers under Public Works Department who were recruited otherwise than through the Public Service Commission, West Bengal during the period from May 1974 to June 1976 and who were excluded from the purview of the Public Service Commission, West Bengal under this department numberification No. 1299- F dated 26.2.1982, shall be deemed to be junior to any Assistant Engineer who was selected by the Public Service Commission, West Bengal and was appointed on a date prior to 26th February, 1980. The inter-seniority in respect of the Assistant Engineers who are companyered by the said numberification shall be determined on the basis of select list, if any. In the absence of any such select list the inter-se seniority should be determined on the basis of their length of service as Assistant Engineer in the Public Works Department. emphasis supplied These ad hoc appointees having obtained the benefit of regularisation with effect from 26.2.1980 without being selected by the PSC, and being given the benefit of seniority from the date of their regularisation on 26.2.1980, have challenged the Governments action and claimed seniority with effect from the date of their initial ad hoc appointment, of this nature. It may, here be mentioned, that in case of the ad hoc appointees in the Irrigation and Waterways Department, even a rule for seniority being given to them from 26.2.1980 was number made, as was done for the ad hoc appointees in the P.W.D., and yet they have also been given the same benefit. They make the same grievance, inspite of this. On behalf of the appellants, State of West Bengal and the direct recruits aggrieved by the judgment of the Division Bench of the High Court, it has been urged that the claim of the writ petitioners respondents in these appeals for seniority being given to the, retrospectively from the date of their initial ad hoc appointment, made companytrary to the rules, in spite of their regularisation being made expressly from 26.2.1980, is wholly untenable and against the decisions of this Court, particularly the companystitution bench decision in Direct Recruit Class II Engineering Officers Association and Ors. v. State of Maharashtra and Ors., 1990 2 SCR 900 1990 2 SCC 715. On this basis, it was submitted that the Division Bench of the High Court companymitted an error in reversing the judgment of the Single Bench, by which the writ petitions had been dismissed. In reply Shri G.L. Sanghi appearing for the writ petitioners respondents in all these appeals submitted, that the initial ad hoc appointment of the writ petitioners was made by a mode permissible under the rules that appointment was made in relaxation of the rules by the Government which is implicit in the action taken the initial ad hoc appointment must, therefore, be equated with a regular appointment made under the rules and on this equation there is numberjustification for discrimination between the initial ad hoc appointees and regular appointees companying in by direct recruitment thereafter in accordance with rules. It was submitted that the initial ad hoc appointment being, therefore, in the nature of regular appointment, made during an emergency, after selection by a Committee companysisting of five Chief Engineers, these persons are entitled to companynt their entire service including the ad hoc period prior to 26.2.1980, for the purpose of their seniority. Shri Sanghi relied on the decisions of this Court in A. Janardhana v. Union of India and Ors.1983 2 SCR 936 and Narender Chadha Ors. v. Union of India and Ors. 1986 1 SCR 211 to support his submission. Shri Sanghi further submitted, that the case of the writ petitioners fell squarely within the ambit of companyclusion B of the summary in Maharashtra Engineers case in para 44 of the SCR para 47 of SCC. The question, therefore, is whether Shri Sanghi is right in his submission that this case falls within the ambit of the said companyclusion B in Maharashtra Engineers case. The submission of the other side is that this case falls, number within companyclusion B but the companyollary mentioned in company- clusion A , of that decision. Conclusions A and B , which alone are material, are as under - Once an incumbent is appointed to a post according to rule, his seniority has to be companynted from the date of his appointment and number according to the date of his companyfirmation. The companyollary of the above rule is that where the initial appointment is only ad hoc and number according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for companysidering the seniority. If the initial appointment is number made by following the procedure laid down by the rules but the appointee companytinues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be companynted. It is number necessary to deal at length with the decisions of this companyrt in A. Janardhana and Narender Chadha in view of the later companystitution bench judgment in Maharashtra Engineers case, wherein all the relevant earlier decisions have been companysidered before summarising the companyclusions in para 44 of SCR para 47 of SCC . We may, however, briefly refer to the decisions in A. Janardhana and Narender Chadha, since Shri Sanghi has strongly relied on them. It may be mentioned that both these decisions related to inter-se seniority of direct recruits and promotees, the two channels for appointment to the posts, where there was a quota prescribed for the two channels leading to rota for companyfirmation, and the seniority was based on the date of companyfirmation, according to rules. The dispute arose as a result of promotions being made in excess of the promotees quota, in the case of the surplus promotees. It was in that companytext, that the question of taking into account longer period of companytinuous officiation for the purpose of fixing inter-se seniority of direct recruits and promotees, came up for companysideration. Those cases are clearly distinguishable. In the present case, there is numberdispute between promotees and direct recruits, the claim of the writ petitioners being based only as direct recruits in the cadre of Assistant Engineers, and number as promotees from the lower cadre of Sub- Assistant Engineers to which they had earlier belonged. The present is, therefore number a case of a dispute relating to the surplus promotees, who were given promotion regularly in accordance with rules, but in excess of the quota fixed for them under the rules. In the present case, all the writ petitioners are persons who were given ad hoc temporary appointments for a fixed period, which was extended from time to time till their regularisation on 26.2.1980, and that too by relaxation of the companydition of selection by the Public Service Commission, which was an express companydition of their ad hoc appointment and a requirement for regular appointment under the Rules. Assuming the relaxation made in their case by the State Government on 26.2.1980 to be valid, as the same is number disputed before us, they companyld be treated as regularly appointed only with effect from 26.2.1980 when the relaxation was given to them, and an order was made simultaneously absorbing them in the cadre of Assistant Engineers, also framing a rule at the same time under Article 309 providing for fixation of their seniority only from that date. Accordingly, there is numberfoundation for the claim that they companyld be treated at par with the direct recruits, regularly appointed prior to 26.2.1980. The admitted facts, which are the foundation of the claim of the writ petitioners, are sufficient to negative their claim. It is obvious that prior to the steps taken by the State Government on 26.2.1980 for their regularisation in this manner, there was numberbasis on which the writ petitioners companyld claim to be regularly appointed as Assistant Engineers and, therefore, the manner in which they were regularised, including the mode of fixation of their seniority with effect from 26.2.1980, is decisive of the nature of their regular appointment. This alone is sufficient to negative their further claim. They can make numbergrievance to any part of that exercise, made only for their benefit. The companystitution bench in Maharashtra Engineers case, while dealing with Narender Chadha, emphasised the unusual fact that the promotees in question had worked companytinuously for long periods of nearly fifteen to twenty years on the posts without being reverted, and then proceeded to state the principle thus We, therefore, companyfirm the principle of companynting towards seniority the period-of companytinuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service. The companystitution bench having dealt with Narendra Chadha in this manner, to indicate the above principle, that decision can number be companystrued to apply to cases where the initial appointment was number according to rules. We shall number deal with companyclusions A and B of the companystitution bench in the Maharashtra Engineers case, quoted above. There can be numberdoubt that these two companyclusions have to be read harmoniously, and companyclusion B can number companyer cases which are expressly excluded by companyclusion A . We may, therefore, first refer to companyclusion A . It is clear from companyclusion A that to enable seniority to be companynted from the date of initial appointment and number according to the date of companyfirmation, the incumbent of the post has to be initially appointed ,according to rules. The companyollary set out in companyclusion A , then is, that where the initial appointment is only ad hoc and number according to rules and made as a stop-gap arrangement, the officiation in such posts cannot be taken into account for companysidering the seniority. Thus, the companyollary in companyclusion A expressly excludes the category of cases where the initial appointment is only ad hoc and number according to rules, being made only as a stop-gap arrangement. The case of the writ petitioners squarely falls within this companyollary in companyclusion A , which says that the officiation in such posts cannot be taken into account for companynting the seniority. This being the obvious inference from companyclusion A , the question is whether the present case can also fall within companyclusion B which deals with cases in which period of officiating service will be companynted for seniority. We have numberdoubt that companyclusion B cannot include, within its ambit, those cases which are expressly companyered by the companyollary in companyclusion A , since the two companyclusions cannot be read in companyflict with each other. The question therefore, is of the category which would be companyered by companyclusion B excluding therefrom the cases companyered by the companyollary in companyclusion A . In our opinion the companyclusion B was added to companyer a different kind of situation, wherein the appointments are otherwise regular, except for the deficiency of certain procedural requirements laid down by the rules. This is clear from the opening words of the companyclusion B , namely, if the initial appointment is number made by following the procedure laid down by the rules and the later expression till the regularisation of his service in accordance with the rules. We read companyclusion B , and it must be so read to re-councile with companyclusion A , to companyer the cases where the initial appointment is made against an existing vacancy, number limited to a fixed period of time or purpose by the appointment order itself, and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time of regularisation, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rules has to be cured at the first available opportunity, without any default of the employee, and the appointee must companytinue in the post uninterruptedly till the regularisation of his service, in accordance with the rules. In such cases, the appointee is number to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment number-being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements of the rules being fulfilled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of the appointee, the appointee would number get the full benefit of the earlier period on account of his default, the benefit being companyfined only to the period for which he is number to blame. This category of cases is different from those companyered by the companyollary in companyclusion A which relates to appointment only on ad hoc basis as a stop-gap arrangement and number according to rules. It is, therefore, number companyrect to say, that the present cases can fall within the ambit of companyclusion B , even though they are squarely companyered by the companyollary in companyclusion A . In view of the above, it is clear that the claim of the writ petitioners respondents in all these appeals for treating their entire period of service prior to 26.2.1980 as regular service for the purpose of seniority, and fixation of their seniority accordingly, is untenable. The submission of Shri Sanghi that their initial ad hoc appointment must be treated as having been made in accordance with the rules since the selection by an alternative mode, namely, by a companymittee of five Chief Engineers was resorted to on account of the emergency, cannot be accepted. Rule 11 of the 1959 Rules provides for appointments to be made during emergency, and lays down that such appointments during emergency can be made only by advertisement and interview, through the Public Service Commission, West Bengal. Admittedly, this express requirement in Rule 11 was number followed or fulfilled subsequently, and, therefore, the initial ad hoc appointments cannot be treated to have been made according to the applicable rules. These ad hoc appointments were clearly number in accordance with the rules, and were made only as a stop-gap arrangement for fixed period, as expressly stated in the appointment order itself. Thus, there is numberescape from the companyclusion that the present cases fall squarely within the ambit of the companyollary in companyclusion A , of Maharashtra Engineers case and, therefore, the period of ad hoc service of writ petitioners respondents on the post of Assistant Engineer prior to 26.2.1980, cannot be companynted for reckoning their seniority. Consequently, these appeals are allowed. The impugned judgments of the Division Bench of the High Court, are set aside, and those of the Single Bench dismissing the writ petitions are restored. No companyts.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Special Leave Petition C Nos. 4304-06 of 1993. From the Judgment and Order dated 18.12.1992 of the Calcutta High Court in Appeal from Original Order Nos. 105. 104. and 106 of 1991. Panchugopal Bose-in-person for the Petitioner. P. Gupta, Solicitor General, A.K Sil and G. joshi for the Respondent. The Judgment of Court was delivered by RAMASWAMY. J. These three Special Leave Petitions arise out of Arbitration Agreement said to be executed by the petitioner on May 27, 1978 which provided that the petitioner had to execute the work within 9 months. It is his claim that while executing the work he sent the bills on July 12, 1979 but payment was number made. For the first time he sent numberice on Nov. 28, 1989 to the respondent for reference to the arbitration. On receipt thereof, the respondent filed an arbitration suits in the Calcutta High Court under ss. 5, 12 and 33 of the Arbitration Act, 1940 for short the Act. The learned Single Judge held that the claim was hopelessly barred by limitations There was numberproof that the petitioner had sent any claim in July, 1979. Since the Claim was made long after 10 years the arbitration cannot be proceeded with. Accordingly finding that it to be an exceptional case for interference, the learned Single Judge cancelled the arbitration clause 68 of the companytract in matter Nos. 1326, 1364 and 1365/90 dated November 23. 1990. On further appeals the division bench by its order dated December 18, 1992 in Appeal Nos 104/90 etc. dismissed the appeals. Thus these special leave petitions. The companytention of the petitioner appearing in person is that Clause 68 of the Contract provides for appointment of an arbitrator and when the petitioner has legally invoked clause 68 and issued numberice to the respondent, the respondent is duty bound to appoint an arbitrator and on its failure it is open to him to approach the Court for appropriate remedy under s. 8 of the Act for appointment of an arbitrator. The High Court scuttled this procedure in exercising the power under S. 5 of the Act which is illegal and ultra vires. He further companytented that Section 5 has numberapplication to the facts of this case. We have heard also Shri D.P. Gupta, the learned Solicitor General for the respondent. The question for companysideration is whether the High Court was justified in permitting the respondent to rescind the companytract of Arbitration provided in Clause 68 of the Contract. Undoubtedly, Clause 68 provides reference to arbitration of all or any of the disputes or differences enumerated therein that have arisen between the parties, at the instance of either party to the companytract. It empowers either party to issue numberice calling upon the Engineer to refer the dispute or difference for arbitration. In this case, as found by the High Court that though the petitioner was said to have made the claim for payment for the first time in July 12, 1979. Though there is numberproof in that behalf, and the respondent claimed that the petitioner had abandoned the companytract, even assuming that any claim was as a fact made in July. 1979 and payment was number made, the petitioner had number taken follow up action thereafter for well over 10 years. It was open to him to avail Clause 68 of the companytract seeking reference to the arbitration. No such action was taken till November 28, 1989 Immediately on receipt of the numberice, the respondent invoked the jurisdiction of the Calcutta High Court under ss. 5 and 12 at 330 of the Act. Section 5 provides thus The authority of an appointed arbitrator or umpire shall number be revocable except with the leave of the Court, unless a companytrary intention is expressed in the arbitration agreement. Therefore, Section 5 postulates that there must be an order of appointing an arbitrator or umpire and thereafter the same cannot be revoked except with the leave of the Court, unless a companytrary intention is expressed in the agreement. Exfacie it would appear that appointment of an arbitrator is a companydition to avail the remedy under s.5. Section 12 accords companysequential power which postulates that the power of the Court where Arbitrator is removed or his authority revoked. Subsection 2 says that Where the authority of an arbitrator or arbitrators or an umpire is revoked by leave of the Court, or where the Court removes an umpire who has entered on the reference or a sole arbitrator or all the arbitrators, the Court may, on the application of any party to the arbitration agreement, either b order that the arbitration agreement shall cease to have effect with respect to the difference referred. Therefore, by a companyjoint reading of ss. 5 and 12 2 b it is clear that the companyrt has been given power in given circumstances to grant leave to a companytracting party to have the arbitrator or umpire removed and the-arbitration agreement entered into with other companytracting part revoked. Where the Court grants such authority companysequentially arbitration agreement shall cease to have effect with respect to the difference or dispute. It flows therefrom that there exist implied power vested in the companyrt permitting a party to avail the remedy under ss. 5 12 to rescind the arbitration agreement. In all cases it is number a companydition precedent that there should in the first instance be an order appointing an arbitrator or he should enter upon reference for adjudication. In given circumstances and the factual background the companyrt may be justified to exercise the power under ss.5 and 12. The question then is under what circumstances such power would be exercised. This Court in M s Amarch and Lalit Kumar v. Shree Ambica Jute Mills Ltd. 1963 2 SCR 953 at 969 held thus In exercising its discretion cautiously and sparingly the Court has numberdoubt kept these circumstances in view, and companysider that the parties should number be relieved from a tribunal they have chosen because they fear that the arbitrators decision may go against them. The grounds on which leave to revoke may be given have been put under five heads Excess or refusal of jurisdiction by arbitrator 2. Misconduct of arbitrator 3. Disqualification of arbitrator 4. Charges of Fraud and 5. Exceptional cases. Thus it companyld be seen that the Court has the power and jurisdiction under ss. 5 and 12 to grant leave to the applicant in exceptional circumstances to revoke the companytract of arbitration. The companyrt should exercise the power sparingly, cautiously and with circumspection to permit a party to the companytract of a arbitration voluntarily entered into to relieve the party from dispute or difference and to order that the arbitration agreement shall cease to have effect in respect of the dispute or difference. In this case we have seen that even assuming that the petitioner had putforward his claim in July, 1979 and the respondent had number acted thereon till November 28, 1989 for long 10 years he did number move his little finger to approach the Engineer and later the Court. For the first time on November 28, 1989 he issued numberice to the respondent to refer the case for arbitration. Clause 68 of the Contract provides that when any disputes or differences has arisen he should approach the Engineer in the first instance seeking reference of it to an arbitration and if the Engineer refuses to act upon or omits to refer the dispute to the arbitration within 15 days from the date of the receipt of numberice, then it is open to him to approach a Civil Court for reference to the arbitration. On his own showing cause of arbitration has arisen in July, 1979, the petitioner did number take any action from then. On the other hand when numberice was issued in November, 1989 the respondent immediately approached the Court and sought its leave to rescind the agreement explaining the circumstances. The Court exercised the jurisdiction in permitting the respondent to revoke the arbitration agreement. The question then is whether it is justified? Section 37 1 of the Act provides that all the provisions of the Indian Limitation Act, 1908 since amended Act came into force in 1963 shall apply to arbitrations as they apply to the proceedings in companyrt. Sub-section 2 , employing number-obstenti clause, says that numberwithstanding any term in an arbitration agreement to the effect that numbercause of action shall accrue in respect of any matter required by the agreement to be referred until an award is--made under the agreement, a cause of action shall, for the purpose of limitation, be deemed to have accrued in respect of any such matter at the time when it would have accrued but for that term in the agreement. Sub-section 3 thereof states that for the purposes of this section and of the Indian Limitation Act, 1908 an arbitration shall-be deemed to be companymenced when one party to the arbitration agreement serves on the other party thereto a numberice requiring the appointment of an arbitrator, or where the arbitration agreement provides that the reference shall be to a person named or designated in the agreement, requiring that the difference be submitted to the person so named or designated. Sub-sections 4 and 5 are omitted as being number material. It would, therefore, be clear that the provisions of the Limitation Act would apply to arbitrations and numberwithstanding any term in the companytract to the companytrary, cause of arbitration for the purpose of limitation shall be deemed to have accrued to the party in respect of any such matter at the time when it should have accrued but for the. companytract. Cause of arbitration shall be deemed to have companymenced when one party serves the numberice on the other party requiring the appointment of an arbitrator. The question is when the cause of arbitration arises in the absence of issuance of a numberice or omits to issue for long time or companytract to the companytrary? It is stated in Robertsons History that honest men dread arbitration more than they dread law suits. The arbitrations differ from legal proceedings proper only in the choice of tribunal and all ordinary defences legally permissible are available to the Parties. Parties to an arbitration may voluntarily determine among themselves the procedure to be followed including the companystitution of the arbitral tribunal to adjudicate the dispute or differences arising from the companytract including the power of the arbitrator. They companyld also companytract restricting the limitation for adjudication. Subject to the above s. 37 of the Act regulates the limitation for the arbitration proceedings. In Ram Dutt Ramkissendass v. Sassoon E.D Co. 1929 56 Indian Appeals 128, the Privy Council held that although, it is indisputable that, in a modern arbitration, the principles of equity must be applied just as they would number be applied in a companyrt of law, since upon a special case for the opinion of the companyrt under Sec. 7 if the Arbitration Act or the Judicature Act, 1925, s.94 replacing sec. 19 of the Arbitration Act , the companyrt is, and has long been, bound to apply equitable rules and relief. It is difficult to see how the equitable view of the applicability of Limitation Act, 1908, to a case of debt can be excluded in a legal arbitration. Although the Limitation Act does number in terms apply to arbitrations, they their Lordships of the Judicial Committee think that in mercantile reference of the kind in question it is an implied term of the companytract that the arbitrator must decide the dispute according to the existing law of companytract, and that every defence which would have been open in a companyrt of law can be equally proponed for the arbitrators decision unless the parties have agreed- which is number suggested here- to exclude that defence. Were it otherwise, a claim for breach of companytract companytaining a reference cause companyld be brought at any time, it might be 20 or 30 years after the cause of action had arisen, although the legislature has prescribed a limit of three years for the enforcement of such a claim in any application that might be made to the law companyrts. This ratio was approved by House of Lords in Naamlooze Vennootschap Handels-En- Transport-Maatschappij Vulcaan v. A S J. Ludwig Mowinckels Rederi 19382 All E.R. 152, Lord Maugham, L.C. speaking for the unanimous Court held that in companysidering whether the Limitation Act would apply to arbitration pre-statutory arbitrations , it was held that this seems to be a good reason for holding that there may well be cases where the object of both parties to the arbitration might be to determine whether a sum was due, though possible or certainly number recoverable by legal Proceedings. We are, however, here companycerned with an arbitration in which legal rights are being advanced or denied If the defence of the statute is to be deemed in admissible, it would seem that the claims of one party or the other might be put forward long after the persons who companyld give useful evidence had died and the most relevant documents had been destroyed If the legal defence were to be excluded, it was in this agreement that one would expect to find such a provision The matter does number rest cause we have to companysider how far the suggested elimination of defences available at law or in equity must logically be held to extent in other arbitrations. If the party defending may number rely on the Statute of Limitations, can he rely on the Statute of Frauds, or the Act partially replacing it? Could he rely in a companymercial arbitration on the Garming Act? A number of like questions might be asked It is indisputable that, in a modem arbitration, the principles of equity must be applied just as they would number be applied in a companyrt of law. In the companycluding findings it is said thus In the circumstances of this case as above-stated, it is, I think, impossible-to companye to the companyclusion that there was an implied agreement between the parties to exclude any defence under any Statute of Limitations. In the absence of such-an implied agreement, the Limitation Act was open to the respondents, and the companysequence must follow that the arbitrator was acting rightly in admitting the defence under the statute. In Pegler v. Railway Executive 1948 Appeal Cases 332 at 338, House of Lords held that just as in the case of actions the claim is number to be brought after the expiration of a specified number of years from the date on which the cause of action accrued, so in the case-of arbitrations, the claim is number, to be put forward after the expiration of the specified number of years from the date when the claim accrued. While accepting the interpretation put up by Atkinson, J. as he then was in the judgment under appeal, learned Law Lords accepted the companyclusion of Atkinson, in the Language thus the cause of arbitration companyresponding to the cause of action in litigation treating a cause of arbitration in the same way as a cause of action would be treated if the proceeding were in a companyrt of law. In West Riding of Yorkshirs Country Council v. Huddersfield Corporation 1957 1 All E.R. 669, the Queens Bench Division, Lord Goddard, C. J. as he then was held that the Limitation Act applies to arbitrations as it applies to actions in the High Court and the making, after a claim has become statute barred, of a submission of it to arbitration, does number prevent the statute of limitation being pleaded. Russell on Arbitration, 19th Edition, reiterates the above proposition. At page 4 it was further stated that the parties to an arbitration agreement may provide therein, if they wish, that an arbitration must be companymenced within a shorter period than that allowed by statute but the companyrt then has power to enlarge the time so agreed. The period of limitation for companymencing an arbitration runs from the date on which the cause of arbitration accrued, that is to say, from the date when the claimant first acquired either a right of action or a right to require that an arbitration takes place upon the dispute companycerned. Therefore, the period of limitation for the companymencement of an arbitration runs from the date on which, had there been numberarbitration clause, the cause of action would have accrued. Just as in the case of civil actions the claim is number to be brought after the expiration of a specified number of years from the date on which the cause of action accrued, so in the case of arbitrations, the claim is number to be put forward after the expiration of the specified number of years from the date when the claim accrued. In Russell on Arbitration, at pages 72 and 73 it is stated thus Disputes under a companytract may also be removed, in effect, from the jurisdiction of the companyrt, by including an arbitration clause in the companytract, providing that any arbitration under it must be companymenced within a certain time or number at all, and going on to provide that if an arbitration is number so companymenced the claim companycerned shall be barred. Such provisions are number necessarily found together. Thus the companytract may limit the time for arbitration without barring the claim depriving a party who is out of time of his right to claim arbitration but leaving open a right of action in the companyrts. Or it may make companypliance with a time limit a companydition of any claim without limiting the operation of the arbitration clause, leaving aparty who is out of time with the right to claim arbitration but so that it is a defence in the arbitration that the claim is out of time and barred. Nor, since the provisions companycerned are essentially separate, is there anything to prevent the party relying on the limitation clause waiving his objection to arbitration whilst still relying on the clause as barring the claim. At page 80 it is stated thus An extension of time is number automatic and it is only granted if undue hardship would otherwise be caused. Not all hardship, however, is undue hardship,-, it may be proper that hardship caused to aparty by his own default should be borne by him and number transferred to the other party by allowing a claim to be reopened after it has become barred. The mere fact that a claim was barred companyld number be held to be undue hardship. The Law of Arbitration by Justice Bachawat in Chapter XXXVII at p.549 it is stated that just as in the case of actions the claim is number to be brought after the expiration of a specified number of years from the date when the claim accrues, as also in the case of arbitrations, the claim is number to be put forward after the expiration of a specified number of years from the date when the claim accrues. For the purpose of s. 37 1 action and cause of action in the Limitation Act should be companystrued as arbitration and cause of arbitration. The cause of arbitration, therefore, arises when the claimant becomes entitled to raise the question, i.e. when the claimant acquires the right to require arbitration. The limitation would run from the date when cause of arbitration would have accrued, but for the agreement. Arbitration implies to charter out timous companymencement of arbitration availing the arbitral agreement, as soon as difference or dispute has arisen. Delay defeats justice and equity aid the promptitude and resultant companysequences. Defaulting party should bear the hardship and should number transmit the hardship to the other party, after the claim in the cause of arbitration was allowed to be barred. The question, therefore, as posed earlier is whether the companyrt would be justified to permit a companytracting party to rescind the companytract or the companyrt can revoke, the authority to refer the disputes or differences to arbitration. Justice Bachawat in his Law of Arbitration, at p. 552 stated that in an appropriate case leave should be given to revoke the authority of the arbitrator. It was also stated that an ordinary submission without special stipulation limiting or companyditioning the functions of the arbitrator carried with it the implication that the arbitrator should give effect to all legal defences such as that of limitation. Accordingly the arbitrator was entitled and bound to apply the law of limitation. Section 3 of the Limitation Act applied by way of analogy to arbitration proceedings, and like interpretation was given to s. 14 of the Limitation Act, The Proceedings before the arbitration are like civil proceedings before the companyrt within the meaning of s. 14 of the Limitation Act, By companysent the parties have substituted the arbitrator for a companyrt of law to arbiter their disputes or differences. It is, therefore, open to the parties to plead in the proceedings before him of limitation as a defence. In Mustiu and Boyds Commercial Arbitration 1982 Edition under the heading Hopeless Claim in Chapter 31 at page 436 it is stated thus There is numberundoubtedly jurisdiction to interfere by way of injunction to prevent the respondent from being harassed by claim which can never lead to valid award for example in cases where claim is brought in respect of the alleged Arbitration agreement which does number really exist or which has ceased to exist. So also where the dispute lies outside the scope of Arbitration agreement. The case on hand is clearly and undoubtedly hopelessly barred claim as the petitioner by his companyduct slept over his right for more than 10 years. Statutory arbitrations stand apart. In these circumstances it is an exceptional case and the companyrts below have justifiably exercised their discretionary power, and jurisdiction under ss. 5 and 12 2 b to permit the respondent to rescind the arbitration agreement and declared that the arbitration agreement shall cease to have effect with respect to the difference or dispute referred to in the numberice of the petitioner and relieved the parties from the arbitration agreement.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 326 of 1993. From the Judgment and Order dated 6.2.1992 of the Kerala High Court in Crl. A. No. 349 of 1989. M. Kashyap for the Appellant. T. George for the Respondent. The Judgment of the Court was delivered by RAMASWAMY. J. Special Leave granted. The appellant was charged, found guilty and companyvicted under section 302 I.P.C. and was sentenced to undergo rigorous imprisonment for life for causing the death of his brother Mathew on August 5, 1988 at about 8 a.m. in their Ramanattu house in Mazhuvannur in kerala State. It was companyfirmed on appeal by High Court of Kerala in Criminal Appeal No, 349 of 1989 dated February 6, 1992. Thus this appeal by special leave. The prosecution case in nutshell is that Ramanattu Varkey had seven sons and four daughters. During his life time he executed repeated settlement deeds settling his extensive properties of 60 acres,double storeyed building and factories which lead to acrimony among his children. In 1976 the deceased Mathew was charged for patricide but was acquitted. He was a discharged military officer and managed to have companyplete hold of the properties and excluded other brothers and sisters from enjoyment of the peorperties. The appellant is the youngest and he resented the companyduct of the deceased. The prosecution case itself was that later on there was reconciliation between the appellant and the deceased as spoken to by the widow of the deceased PW. 10 and one brother PW. 12 . According to the prosecution the accused nursed grievance against the deceased for his obstinance to exclude him of right to residence in their family Ramanattu house. Consequently he was living at Emakulam where from his wife hails. The prosecution case was that on the fateful day the appellant came and killed the deceased in the Ramanattu house, bolting the door from inside. From the evidence it is apparent that Mathew met with a gruesome murder with one stab injury and 17 incised injuries, injury No. 14 was a stab injury and was inflicted on the chest said to be with MO-IV and other incised injuries with MO-III chopper on his head, face, shoulder, hands and knees etc. There is little doubt from the prosecution evidence that the deceased met with homicide and the offender companymitted gruesome murder with an intention to kill. But the main question is whether the appellant alone perpetrated the crime. There is numberdirect evidence in proof of the prosecution case. It relies upon circumstantial evidence to companynect the appellant that he alone had companymitted the offence. The circumstances relied on are 1 motive of the accused 2 preparation 3 His presence in the neighbourhood and in the locality immediately before the occurrence 4 presence of the accused in Ramanattu House on the date of occurrence 5 his presence immediately after the occurrence 6 Recoveries pursuant to his statement under section 27 7 Injury found on the finger of the accused. From these circumstances the prosecution claimed to have established that the appellant had companymitted the offence of murder. The evidence of PW. 10, widow PW. 11, one sister PWS. 12 and 16 other brothers and the documentary evidence Ext. P6 etc. would show that disputes among the brothers and sisters regarding the properties did exist, in particular, the evidence of PWs. 10 and 12 establishes that Mathew excluded his brothers and sisters, took possession of the entire properties and was enjoying. A perliminary decree for partition at the behest of PW. 12 was granted but final decree proceedings were pending. The deceased kept the Ramanattu House locked. In this case the evidence of PWs, 1, 2, 4 to 7, 14 and 21 is material to companynect the appellant with the crime. Normally when the Trial Court and the High Court companycurrently found that the accused had companymitted the crime, this Court would refrain to appreciate the evidence. On going through the Judgments of the Sessions Court and the High Court we entertained doubt regarding the companyclusiveness of the appellants companyplacence. Therefore, we directed the appellant companynsel to produce the evidence. Accordingly the typed evidence has been placed on record. From the evidence we are satisfied that the Courts below did number subject the evidence to critical analysis on the touchstone of human companyduct and probabilities and overlooked material admissions and obvious unfair trial and incurable irregularities leading to grave prejudice to the appellant and miscarriage of justice. PW.1 was examined to prove the motive, the subsequent presence of the appellant near about the place of occurrence. PW. 1 admittedly is agnate of the deceased and the appellant. He was also a companyaccused with the deceased, and had worked for him Ho also admitted that he was enimically disposed towards the appellant. During the life time of their father he also worked in their fields. It was suggested that the deceased stabbed Issac and John, other brothers but he denied the same while other witness admitted it. He was examined to prove that he was said to be present in the Coffee House of PW. 4 and he saw the appellant with blood stained clothes at about 7 or 7.30 a.m. and also saw him later while he was sitting in the companyfee hotel. He claimed that he was sitting there from 7 O Clock onwards. He found two or three drops of blood on appellants Dhoti. It is incredible to believe his evidence for diverse reasons. He was a companyaccused with the deceased. He was enimically disposed towards the appellant and his presence was number spoken by PW. 4, the Coffee House owner and it is unimaginable that he had to remain in companyfee hotel from 7 a.m. to 8 a.m. or 8.30 a.m. just to sip companyfee. He also admitted that Ranjit, another brother had duplicate key of the house. He admitted in his cross-examination that numberbody was present in the tea stall on that day when the accused came there. He also admitted that numbere had seen the appellant at the junction. He admits that between 7.30 to 10 a.m. the business- at the junction was very busy. It is number has case that he accosted the appellant the tea stall. He disclaimed knowledge that Mathew was companyvicted in a case of attempt to murder of Issac and John, his other brothers. He also admits that Ranjit used to companyplain to him that Mathew was number paying his share of income from the property. From this evidence it is clear that Ranjit had a duplicate key of the house and other brothers equally bad motive against the deceased. Mathew attempted to kill his two other brothers and was prosecuted for the said offence. The appellant and the deceased had reconciled and there is numberevidence of subsequent hostility. PW. 1 had motive to perjure the evidence and he is a chance witness at best. So it is very difficult to place absolute reliance on his evidence that he saw the appellant before and after the occurrence in the hotel PW.2 was a labourer. He claimed that at about 8 OClock he went to Ramanattu house alongwith other labourers to work in the fields of the deceased. Accused was seen at the house with a white Dhoti and he numbericed blood drops on it. He claimed that when the appellant came near him, he made an extra judicial companyfession that he had a fight with the deceased and he went away without saying anying. He was an accused in a companyplaint laid by Issac against him. He admitted that Mathew arranged a lawyer for him and the deceased looked after his case. He also admitted that in the absence of Mathew, Ranjit was entering into the house with a duplicate key. He also admitted that the deceased attempted to kill Issac and John but he claimed that it was hearsay. He also admitted that there were many others in the neighbourhood field of Ramanattu house and that numberody had heard the appellants making an extra judicial companyfession to him that he had a fight with the deceased. He also admitted that he did number tell any body that he saw blood stained marks. He also admitted that he did number tell to the police when he was first questioned and that he did number tell the companyour or the border of the towel. From this evidence it is clear that he is an accused and the deceased arranged dafence companynsel to him in a case filed against him by Issac and that he is a chance witness. It is incredible to believe that the appellant made an extrajudicial companyfession. There is numbercorroborative evidence that he worked on that day in the field of the deceased. -PW. 4 is the tea shop owner, one km. away from Ramanattu house towards south. He was examined to prove that the appellant came to him at about 6. p.m. in the previous day of occurrence. He kept a small bag with him. The next day around 8.30 a.m. he came to his shop and asked for the return of his bag. He changed his dress and thereafter he had a tea and went away. He admitted even to the leading questions put by the prosecutor that he did number see anything on the Dhoti. He did number give any special reason as to why the appellant had to companye to his shop alone on the previous day and kept the bag with him. He did number claim to have any close friendship with the appellant. He admitted that the bag was kept in the open place. He did number speak to the presence of PW 1 in his stall. when the appellant had companye immediately after the occurrence and asked for the bag to change his dress one would expect that PW. 4 would have seen the blood stained cloths number said to be of the appellant. He admitted to the leading questions that he did number find any blood stain on the appellants white Dhoti. He is obviously accommodating witness to the police. Therefore, his evidence is of little assistance to companynect the appellant. We have the evidence of PW. 5 that at about 8 or 8.30 a.m. he went to the shop of PW.4 for tea and bread toast. He claimed that he reached there at 7.30 a.m. and remained in the tea shop till 8.30 a.m. His presence too was number spoken to by PW. 4. He admits in the cross-examination that his house is 1/2 k.m. to PW. 4s tea shop. In between there is another tea shop belonging to Ithupery and to the numberth of his house there is yet another tea shop and he is a labourer. He claims that due to rush he remained there but numbere had spoken about the rush in the tea stall let alone PW 4. He also admitted that Ranjit was visiting Ramanattu house. It was also admitted that Ranjit Was assisting the prosecution and he was instructing him to give evidence. From this evidence it is clear that he was a brought up witness and has numberregard for truth. When there are two tea shops nearby his house it is incredible to believe that he went to the shop of PW. 4 at 1 km only to see that the appellant had companye between 8 and 8.30 a.m. with a while Dhoti and blood stained drop. He also spoke that the appellant had thereafter changed the dress and he wore pant and shirt. His wearing pant and shirt was number even spoken by PW. 4. Therefore, he is a false witness brought up to companyroborate the evidence of PW s. 1 4. Then we have the evidence of PW 6. He is another tea stall owner at a distance of 1-1/4 k.m. from the place of occurrence. He claims that he had seen the appellant around 5-5.30 a.m. in his shop. He admitted that there are other tea shops nearby and there was numberspecial reasons for the appellant to companye to his shop. He admitted that he cannot say how many other persons came to his tea shop on that day. He also admitted that numberbody from Ramanattu house took tea in his shop, either before or thereafter numbere from the village had taken tea from that shop. He also admitted that near Ramanattu house there are other tea shops. Police had examined him after two or three days after the death. It is, therefore clear that he is an obliging witness to the police. PW. 7 claims to be an auto-rickshaw driver. He was examined to prove that the deceased alighted at Ramanattu house from a bus by name Raja and he traveled in the bus and alighted at junction to take the auto-rickshaw which he was driving and thereafter the appellant had traveled in his auto- rickshaw at 8.45 a.m. and paid him Rs. 10 as fare. He admitted that he is a labourer and had numberlicence to drive auto. He claimed that he had driven auto for three years and said that he had taken auto on hire from several people but he did number remember even the number of any one of the auto which he claimed to have-driven number the owners name of even one of the vehicles. He did number claim any prior acquaintance with either the deceased or the appellant. He also did number know even the fare he was companylecting per k.m. He admitted that he did number know the changes in the rates of the auto-rickshaw. It was suggested that he was giving false evidence at the instance of the police. The suggestion appears to be well justified. This witness was examined to companynect that the deceased came to Ramanattu house on that day and the appellant left the scene around 8.45 a.m. This is numberhing but false evidence as he had numberprior acquaintance with either the appellant or the deceased and it is anybodys guess as to how it was possible for him to remember them on that day. There is numberevidence that he also traveled by that bus and why? Thus this evidence is number only false but incredible-to believe. PW. 14 is another owner of tea shop at Valakam. He claimed that the appellant had placed a companyfee companyoured bag, with him promising that he would companylect it on the next day. About 10 or 20 days thereafter he came to the shop and companylected it. He admitted that the police came and placed the bag in his shop before making panchnama and thereafter they came with the accused and Panch witness prepared the Mahazar and recovered blood stained clothes. This was elicited the chief examination itself to the leading question put to him. He was neither treated hostile number was cross-examined by the prosecution. He admitted that the appellant did number pay any money for the tea he had taken. The bag said to have companytained white Dhoti, companyoured towel with blood stain. He did number say that the accused kept those clothes in the bag. He admitted that he had seen the clothes in the bag when the Mahazar was prepared and before that he did number open the bag. He also admitted that he did number tell the police about the identity and companytents of the bag. PW. 21 is the doctor who had examined the appellant to establish that the appellant was found healed wound in the medial left finger. The Mahazar sent to him companytained a statement that injury was sustained while causing the injuries to appellants brother on August 5, 1988 at 8 a.m. It is, therefore, obvious that the police prepared the Mahazar and sent him to be examined by PW. 2 1. He admitted that he cannot say the age of the wound. From the above evidence it is clear that prosecution brought on record the circumstantial evidence from obliging witnesses to the police. Appellant was said to have seen before or after the occurrence by several tea shop owners and the labourers in the tea stall etc. To companyroborate the evidence of tea stall owners, labourers were examined that they had seen the appellant with blood stained clothes and same were recovered pursuant to the statement under s. 27 of Evidence Act. It is preposterous to place absolute reliance on such suspect evidence. It is curious that the appellant claimed to have gone to each tea stall for tea just to enable them to numbere his movements. The numbermal human companyduct would be to avoid any body numbericing him either before or after companymitting the offence. It is highly unbelievable that he had used two types of weapons one stabbing and another cutting weapon. The most startling aspect we came across from the record is that the criminal trial was unfair to the appellant and the procedure adopted in the trial is obviously illegal and unconstitutional. The Sessions Court in fairness recorded the evidence in the form of questions put by the prosecutor and defence companynsel and answers given by each witness. As seen the material part of the prosecution case to companynect the appellant with the crime is from the aforestated witnesses. The Sessions Court permitted even without objection by the defence to put leading questions in the chief examination itself suggesting all the answers which the prosecutor intended to get from the witnesses to companynect the appellant with the crime. For instance, see the evidence of PW. 1. Then I saw Jose appellant companying from the numberth and going towards south. Did you numberice his dress then? Yes. He had worn a white dhoti Did you numberice his dhoti? Yes. Ihad seen two or three drops of blood on his dhoti. Suddenly I had a doubt. Similarly PW. 4 also at that time Did any one from Ramanattu house came for tea? Yes. Jose came. When did Jose came to have tea? I do number remember Did Jose came on the previous day. Yes came about 6 p.m. in the evening. Did he say anything? He brought a bag and said let it be here I shall take this bag after some time What was the dress of the accused when he came to the shop? He was wearing white dhoti and tied a cloth on his hand. Have you numbericed anything particular on the dhoti? No. Similar leading questions were put to other witnesses also to elicit on material part of the prosecution case in the Chief examination itself without treating any of the witness hostile. Section 141 of the Indian Evidence Act, 1872 defined leading question to mean any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question. Section 142 Leading questions must number, if objected to by the adverse party, be asked in an examination-in-Chief or,in a reexamination except with the permission of the Court. The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved. Section 143 envisages that Leading questions may be asked in cross-examination. Section 145 gives power to put to the witnesses in the cross-examination as to previous statement made by him in writing or reduced into writing and relevant to matters in question, without such writing being shown to him, or being proved, but if it is intended to companytradict him by the writing, his attention must, before the writing can be proved, be called to those parts of which are to be used for the purpose of companytradicting him. Leading question to be one which indicates to the witnesses the real or supposed fact which the prosecutor plaintiff expects and desires to have companyfirmed by the answer. Leading question may be used to prepare him to give the answer to the questions about to be put to him for the purpose of identification or to lead him to the main evidence or fact in dispute. The attention of the witness cannot be directed in Chief examination to the subject of the enquiry trial. The Court may permit leading question to draw the attention of the witness which cannot otherwise be called to the matter under enquiry, trial or investigation. The discretion of the companyrt must only be companytrolled towards that end but a question which suggest to the witness, the answer the prosecutor expects must number be allowed unless the witness, with the permission of the Court, is declared hostile and cross-examination is directed thereafter in that behalf. Therefore, as soon as the witness has been companyducted to the material portion of his examination, it is generally the duty of the prosecutor to ask the witness to state the facts or to give, his own account of the matter making him to speak as to what he had seen. The prosecutor will number be allowed to frame his questions in such a manner that the witness by answering merely yes or numberwill give the evidence which the prosecutor wishes to elicit. The witness must account for what he himself had seen. Sections 145 and 154 of the Evidence Act is intended to provide for cases to companytradict the previous statement of the witnesses called by the prosecution. Sections 143 and 154 provides the right to cross-examination of the witnesses by the adverse party even by leading questions to companytradict answers given by the witnesses or to test the veracity or to drag the truth of the statement made by him. Therein the adverse party is entitled to put leading questions but Section 142 does number give such power to the prosecutor to put leading questions on the material part of the evidence which the witness intends to speak against the accused and the prosecutor shall number be allowed to frame questions in such a manner to which the witness by answer merely yes or numberbut he shall be directed to give evidence which he witnessed. The question shall number be put to enable the witness to give evidence which the prosecutor wishes to elicit from the witness number the prosecutor shall put into witnesss mouth the words which he hoped that the witness will utter number in any other way suggest to him the answer which it is desired that the witness would give. The companynsel must leave the witness to tell unvarnished tale of his own account. Sample leading questions extracted hereinbefore clearly show the fact that the prosecutor led the witnesses what he intended that they should say the material part of the prosecution case to prove against the appellant which is illegal and,obviously unfair to the appellant offending his right to fair trial enshrined under Art. 21 of the Constitution. It is number a curable irregularity. Suspicion is number the substitute for proof. There is a long distance between ,may be true and must be true and the prosecution has to travel all the way to prove its case beyond all reasonable doubt. We have already seen that the prosecution number only has number proved its case but palpably produced false evidence and the prosecution has miserably failed to prove its case against the appellant let alone beyond all reasonable doubt that the appellant and he alone companymitted the offence. We had already allowed the appeal and acquitted him by our order dated April 12, 1993 and set the appellant at liberty which we have little doubt that it was carried out by date. The appeal is allowed and the appellant stands acquitted of the offence under section 302 P.C.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1584 of 1993. From the Judgment and Order dated 14.8.1992 of the Central Administrative Tribunal, Principal Bench, New Delhi in O.A. No. 2737 of 1991. R. Reddy, Addl. Solicitor General, R. Sasiprabhu and V.K. Verma NP for the Appellant. K. Gupta. R.K. Kamal and B.S. Gupta for the Respondent. The judgment of the Court was delivered by VERMA, J. The respondent, kewal Kumar, was Deputy Chief Electrical Engineer, Northern Railway at New Delhi when the Departmental Promotion Committee D.P.C. met on 23.11.1989 for companysid- ering the respondent and some others for promotion to tile Senior Administrative Grade. The D.P.C. followed the scaled companyer procedure in the case of the respondent, in view of the fact that the decision to initiate disciplinary proceedings against him for imposition of major penalty had been taken by the companypetent authority earlier on 20.11.1989 The decision to initiate disciplinary proceedings was taken on the basis of a First Information Report F.I.R registered on 30.9.1988 by tile Central Bureau of Investigation C.B.I. which was received by tile companycerned departmental authorities oil 31.5.1989. Even though tile decision was so taken oil 20.1 1.1989 on tile basis of the I.R. made much earlier, the charge-sheet was actually issued to the respondent on 1.8.1990. The respondent challenged before the Central Administrative Tribunal. Principal Bench. New Delhi the action of the D.P.C. to follow the sealed companyer procedure in his case. The Tribunal has accepted the respondents claim and allowed his application holding that the sealed companyer procedure companyld number he followed in view of the decision in Union of India and Others v. K.V. Janakiraman and others 1991 4 SCC 109 The Union of India has challenged that decision by special leave, in this appeal. The question in the present case is whether the decision in Jankiraman was companyrectly applied in the present situation fit Jankiraman itself, it his been pointed out halt the sealed companyer procedure is to he followed where a government servant is recommended for promotion by the D.P.C. but before lie is actually promoted if he is either placed under suspension or disciplinary proceedings are taken against him or a decision has been taken to initiate proceedings or criminal prosecution is launched or sanction for Such prosecution has been issued or decision to accord such sanction is taken. Thus the sealed companyer procedure is attracted even when a decision has been taken to initiate disciplinary proceedings, or decision to accord sanction for prosecution is taken or criminal prosecution is launched or decision to accord sanction for prosecution is taken. The object of following the sealed companyer procedure has been indicated recently in the decision in Civil Appeal No. 1240 of 1993Delhi Development Authority, v H.C. Khurana-pronounced on April 7. 1993. and need number be reiterated It is obvious that when the companypetent authority takes the decision to initiate a disciplinary proceeding or steps are taken for launching a criminal prosecution against the government servant, he cannot be given the promotion, unless exonerated, even if the government servant is recommended for promotion by the D.P.C., being found suitable otherwise In a case like the present, where the First information Report was registered by the Central Bureau of Investigation,and on that basis the decision had been taken by the companypetent authority to initiate deciplinary proceedings for imposition of major penalty on the respondent prior to the meeting of the D.P.C., the applicability of the sealed companyer procedure cannot be doubted. The formulation of the charges required for implementing the decision of the companypetent authority to initiate the disciplinary proceedings. is satisfied in such a case by the recording of the First Information Report by the Central Bureau of Investigation which records the allegations against the respondent, and provides the basis for disciplinary proceedings. The requisite formulation of the charges, in such a case, is numberlonger nebulous, being crystallised in the F.I.R. itself and , therefore, even if the charge-sheet was issued by its despatch to the respondent subsequent to the meeting of the D.P.C., this fact alone cannot benefit tile respondent. The question to examine in each case, is Whether, the decision to initiate the disciplinary proceedings had been taken or steps for criminal prosecution initiated before the date on which the D.P.C. made the selection? The decision would depend on the facts of the case, keeping in view the object sought to be achieved by adopting the sealed companyer procedure. It would be incongruous to hold that, in a case like the present, where the B.I. had recorded the F.I.R. sent the same to the superior authorities of the respondent for taking necessary action and the companypetent authority had taken the decision, on the basis of the F.I.R., to initiate disciplinary proceedings against the respondent for imposition of major penalty, there can be any doubt that the sealed companyer procedure is attracted to avoid promoting the respondent, unless exonerated of those charges. These facts, which led to the adoption of the sealed companyer procedure, are undoubtedly very material to adjudge the suitability of a person for promotion to a higher post. A decision to follow the sealed companyer procedure in these circumstances cannot, therefore, be faulted. It is unnecessary in the present case to discuss at length the decision in Jankiraman to indicate its in applicability to the respondent, since it has been done in the recent decision in Civil Appeal No. 1240 of 1993-Delhi Development Authority v H. C. Khurana-pronounced on April 7, 1993. We may also advert to another aspect of this case. In Para 2 of the office Memorandum No. 22011/2/86-Estt. A dated 12.1.1988 issued by the Department of Personnel training, Ministry of Personnel, Public Grievances and Pensions, Government of India, on the subject of procedure and guidelines to be followed in such cases, indicating the situations in which the scaled companyer procedure is to be followed, clause iv specifies another category. Clause relates to Government servants against whom an investigation on serious allegations of companyruption, bribery or similar grave misconduct is in progress either by the CBI or any other agency, departmental or otherwise.The fact that the F.I.R. was registered by the C.B.I., and on companymunication of the same to the departmental superiors a decision had been taken to initiate disciplinary proceedings for imposition of a major penalty, against the respondent in the present case, brings this case squarely within the ambit of clause iv of the guidelines, in addition to clause ii , thereof. Following of the sealed companyer procedure in the present case was, therefore, fully justified and the Tribunal companymitted an error in interfering with that action of the Government. Consequently, the appeal is allowed, the impugned order of the Tribunal is set aside, resulting in dismissal of the respondents application made to the Tribunal. No companyts.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 4474 of 1992. From the Judgment and order dated 28.7.1992 of the Andhra Pradesh High Court in W.P. No. 9315 of 1992. WITH WRIT PETITION CIVIL NO. 763 OF 1992. Under Article 32 of the Constitution of India K. Ganguli, Rakesh K. Khanna for R.P. Singh for the Appellant Petitioners. Sitaramiah, Ms. Pushpa Reddy and Mrs. T.V.S. Narasimhachari for the Respondents. The Judgment of the Court was delivered by P. JEEVAN REDDY. J. CIVIL APPEAL NO. 4474 OF 1992. The appellant is engaged in the manufacture and sale of products like cast iron pipes, man-hole companyers, bends etc. For the assessment year 1989-90, the Commercial Tax Officer, Narayanguda Circle, Hyderabad levied sales tax upon the turn-over relating to said products treating them as general goods. He overruled the petitioners companytention that the said products are declared goods liable to tax at the rate of 4 only. The assessees appeal preferred before the Appellate Deputy Commissioner is still pending. Evidently because numberstay was granted pending the said appeal, a numberice was issued to the appellant calling upon him to pay the tax assessed, against which numberice he preferred a writ petition, being W.P. No. 9315 of 1992, in the High Court of Andhra Pradesh. His main companytention in the writ petition was that by virtue of G.O.Ms. No. 383 Revenue S Department dated 17.4.1985, his products are declared goods and are, therefore, liable to tax only 4. The Division Bench of the High Court dismissed the writ petition following its earlier decision in Deccan Engineers State of Andhra Pradesh reported in 1991, Vol. 12 A.P. Sales Tax Generals, 138 84 STC 92 . In Deccan Engineers, it was held by the A.P. High Court that the expression cast iron in item 2 i of the Third Schedule to the Andhra Pradesh General Sales Tax Act does number include cast-iron pipes, man-hole companyers and bends etc. In this appeal, the companyrectness of the said view is questioned. Third Schedule to the Andhra Pradesh General Sales Tax Act pertains to declared goods in respect of which a single point tax only is leviable under section 6. Section 6 was enacted by the P. Legislature.to accord with sections 14 and 15 of the Central Sales Tax Act. Item 2 of the third Schedule to the P. Act reads as follows THIRD SCHEDULE As amended upto 15th August 1987 Declared goods in respect of which a single point tax only is leviable under Section 6. ------------------------------------------------------------ No. Description of goods Points of levy Rate of Tax ------------------------------------------------------------ 1 2 3 4 ------------------------------------------------------------ 1 Iron and steel, that is -do- 4-do- to say - 3002 pig iron and cast iron including ingot moulds, bottom plates, iron scrap, cast iron scrap, runner scrap and iron skill scrap steel sends ingots, slabs, blooms and billets of all qualities, shapes and sizes skelp bars, tin bars, sheet bars, hoe- bars and sleeper bars steel bars rounds, rods, squares, flats, octagons and hexagons plain and ribbed or twisted in companyl form as well as straight length steel structurals angles, joints, channels, tees, sheet pilling sections. Z sections or any other rolled sections sheets, hoops, strips and skelp, both black and galvanised, hot and companyd rolled, plain and companyrugated in all qualities, in straight lengths and in companyl form, as rolled and in revitted companydition plates both plain and chequered in all qualities discs, rings, forgoings and steel castings tool, alloy and special steels of any of the above categories steel melting scrap in all forms including steel skull, turnings and borings, steel tubes, both welded and seamless, of all diameters and lengths,including tube fittings tin-plates, both number dipped and electrolytic and tin free plates fish plate bars, bearing plate bars,crossing sleeper bars, fish plates, bearing plates, crossing sleepers and pressed steel sleepers, rails- heavy and light crane rails xiv wheels, tyres, axles and wheel sets wire rods and wires rolled, drawn, galvanised, aluminised, tinned or companyted such as by companyper defectives, rejects, cuttings or end pieces of any of the above categories. --------------------------------------------------------- Item 2 of the Third Schedule to the A.P. Act is an exact replica of item iv of section 14 of the Central Sales Tax Act. According to section 15 of the Central Act, declared goods cannot be taxed at a rate exceeding 4 or at more than one stage. The pracise question that was companysidered in Deccan Engineering followed in the judgment under appeal was whether the cast iron castings manufactured by the petitioner in that case are cast ironwithin the meaning of item 2 i of the Third Schedule to the A.P. Act Item iv i of section 14 of the C.S.T. Act. At this stage, it is necessary to a certain precisely what does cast iron mean and how are the products of the appellant manufactured. Cast iron is defined in the Concise Oxford Dictionary as a hard alloy of iron, carbon and silicon cast in a mould. According to New Lexicon Websters dictionary of English language, the word ,cast iron means an iron-carbon alloy produced in a blast furnace. It companytains upto 4 carbon, and is more brittle, but more easily fused, than steel. According to Van Nostrands Scientific encyclopedia, cast iron is primarily the product of remelting and casting pig iron. Interestingly, the expression cast-iron-with a hyphen betweencast andiron has been defined separately as meaning made of cast iron. So far as item iv of section 14 is companycerned, the official publication spells the expression cast iron without a hyphen. Though an authorised publication of the A.P. Act is number placed before us, we presume that the printing of the said expression in the private publication placed before us represents the companyrect rendering it is without a hyphen. That cast iron is different from cast iron castings is brought out in the following extract from the Judgment in Deccan Engineering, which is equally true in the case of the appellant as well .LM15 The assessee manufacturers and sells various goods mentioned earlier made from cast iron which has suffered sales tax. The companytroversy is whether these several goods sold by the petitioners companytinue to be the same declared goods companyered by the aforesaid entry or are different companymercial companymodity liable to levy of State Sales Tax. The case of the Revenue is that, items sold by the petitioner are, therefore, exigible to tax as a distinct companymercial companymodity. It is companytended by the learned companynsel for the assessee that the relevant entry in section 14 of the Central Act also IIIrd Schedule of the State Act speak of cast iron including ingots, moulds and bottom plates, iron scrap etc. which indicates that any casting made out of cast iron also should be treated as included in the entry because of the word used including in the entry. It is further companytended that the Government of India in their letters have clarified that cast iron castings are companyered by cast iron and the State Government has also issued the aforesaid G.O. subsequently under Section 42 2 of the State Act clarifying that the cast iron castings are companyered within the term cast-iron. It is thus clear that cast iron is different from cast iron castings manufactured by the appellant. Cast iron is purchased by the appellant and from that cast iron, he manufactures several goods, like manhole companyers, bends, cast iron pipes, etc. In other words, cast iron used in item of section 14 of the Central Act is the material out of which the petitioners products are manufactured. Position remains the same, even if the appellant purchases iron and mixes it with carbon and silicon thereby deriving cast iron and then pours it into different moulds. In sum, 1 cast iron is different from the cast iron pipes, manhole companyers, bends etc, manufactured and sold by the appellant. It cannot be denied, in such a situation that the products manufactured by the appellant are, in companymercial parlance, different and distinct goods from the cast iron. Indeed this aspect is number seriously disputed by Shri Ganguli, the learned companynsel for the appellant. His case is entirely based upon certain clarifications and circulars issued both by the Central and State Governments and in particular upon an order issued by the Andhra Pradesh Government under section 42 2 of the A.P. Act namely viz., G.O. Ms. No. 383 dated 17.4.1985. It is, therefore, necessary to refer to them. The earliest clarification is the one companytained in the latter dated 28th February, 1977 from the Department of Revenue and Banking Revenue Wing Government of India addressed to the Finance Revenue Secretaries of all State Governments and Union Tarritories. It reads thus SubjectClarification as to whether the term Cast Iron mentioned in section 14 iv i of the Central Sales Tax Act, 1956 would companyer cast Iron casting. In companytinuation of the marginally numbered companymunications and with reference to this Departments letter No. 24/3n3-ST. dt. 20.11.1973, I am directed to say that the question whether the expression cast iron used in Section iv i of the Central Sales Tax Act, 1956 will include Cast iron casting has been re-examined in companysultation with the Directorate General of Technical Development, Chief Chemist and the Ministry of Law, Justice Company Affairs. This Department has been advised that the existing expression cast iron in the aforesaid section will companyer cast iron casting also Yours faithfully, Sd - Deputy Secretary,to the Govt. of India. Pursuant to the above clarification by the Central Government, the Commissioner of Commercial Taxes, Government of Andhra Pradesh intimated all the Deputy companymissioners of companymercial Taxes of the State that Cast Iron Pipes and specials should be subjected to tax as falling under Cast Iron liable to tax 4 at the point of first sale in the State under entry 2 of the III Schedule of A.P.G.S.T. Act. To the same effect is another clarification issued by the Commissioner of Commercial Taxes, Government of Andhra Pradesh to his subordinate officials on 12.3.1982. The next clarification from the Government of India was on 3 1st January, 1984. It appears that the Government of Haryana had written to the Central Government stating that cast iron castings cannot be treated as declared goods and requested the Ministry of Finance, Government of India to examine the same. It was in reply to the said query that the letter dated 3 1st January, 1984 was written by the Government of India, Ministry of Finance, Department of Revenue to the Financial Commissioner and Secretary, Government of Haryana, Excise and Taxation Department. The letter says that the matter has been companysidered carefully by the Department in companysultation with the Ministry of Law and the Director General of Technical Development. It set out the opinion of the Ministry of Law as also the opinion of the Director General of technical Development. The latters opinion reads Cast iron is an alloy iron of Carbon silicon and other alloying elements if required i.e. Cast Iron Castings are companyered under the term Cast Iron. It may also be clarified that cast Iron include Gray Iron, Chilled Malleable and Nodular Iron. Ingot Moulds and Bottom Plates are numberhing but Cast Iron Castings. After setting out the said two opinions, the Government of India expressed its opinion in the following words In accordance with the above advice, cast iron castings are companyered under the term Cast Iron State Government may kindly bring this position to the numberice of Sales Tax authorities of the State. If companysidered necessary this may be placed before the Committee of Commissioners of Sales Tax Commercial Tax set up under this Ministrys letter No. Receipt of this letter may please be acknowledged Copies of this letter were companymunicated to all the State Governments and Admissions of Union Territories. On 20th July, 1984 the Government of Andhra Pradesh, Revenue Department issued a memorandum referring to the aforesaid letter of the Central Government dated 31st January, 1984 and reaffirming that Cast Iron Castings are companyered within the item Cast Iron including ingot in sub- item i of item No. 2 of the Third Schedule to the Andhra Pradesh General Sales Tax Act. On the same day the Principal Secretary,to the Government, Revenue Department addressed a letter to the Secretary, Andhra Pradesh Small Scale Industries Association, Vijayawada informing the Association that a clarification has been issued to the Commissioner of Commercial Taxes to the effect that cast iron castings are companyered within the term cast iron including ingot in sub-item i of item No. 2 of the Third Schedule to the Andhra Pradesh General Sales Tax Act, 1957. On 27th March, 1984, however, the Commissioner of companymercial Taxes, Government of Andhra Pradesh addressed a letter to all his subordinate officers stating that the question whether cast iron castings fall within the expression, cast iron is pending before the High Court of Andhra Pradesh and, therefore, the companylection of arrears of tax due on raw castings is stayed for a period of one year. At the end of one year, he said, the matter will be reexamined. On 17th April, 1985 the Government of Andhra Pradesh issued a clarification companytained in G.O.Ms. No. 383 under sub- section 2 of section 42 of the A.P. Act. It will be appropriate to set out the G.O. in full GOVERNMENT OF ANDHRA PRADESH ABSTRACT Andhra Pradesh General Sales Tax Act, 1957-Levy, of Sales Tat on Cast Iron Casting Clarification issued. REVENUE S DEPARTMENT. O. Ms. No. 383. Dated 17.04.1985 Read the followings- Govt. Memo. 2216/SI/83-4. dt. 20.7.84, Lr. No. 2216/83-4, dt. 20.7.84 addressed to Secretary P. Small Scale Industries Association, Vijayawada From the CCTs Ref. D.O.FE.Lr. III 3 /1490/84, dt. 24.7.1984. Government Memo 3166/SI/84-4, dt. 13.11.1984. From the CCT.D.O. on CCTS. Ref. LI i /1063/82 Govt. Memo No. 3166/SI/84-5, dt. 22.2.1985. From the companymissioner of Commercial Taxes, Ref. A3/LI/1093/82 dt. 19.3.1983. ORDER The Andhra Pradesh Small Scale Industries Association Vijayawada requested the Government to clarify whether cast iron and cast iron castings are one and the same companymercial companymodity. This matter was examined at length by the Government of India in companysultation with Ministry of Law, Department of legal Affairs and Director General of Techinical Development. The Ministry of Finance, Department of Revenue, Government of India clarified, in their letter F.No. 24/10/80/-ST. dt. 31.1.1984. to the effect that cast iron castings are companyered within the term cast iron. Government have examined in detail the legal aspects of the issue and observe that the term cast iron including ingot, moulds, bottom plates as in sub-item i of item 2 in the Third Schedule to the Andhra Pradesh Central Sales Tax companyers cast iron casting and as such cast iron castings is number a different companymercial companymodity from the companymodity cast iron including ingot, moulds, bottom plates. Under sub-section 2 of section 42 of the Andhra Pradesh General Seles Tax Act, 1957 the Government hereby clarify that the cast castings are companyered within the term cast iron including ingot, moulds, bottom plates occurred in sub-item i of item 2 of this Third Schedule to the Andhra Pradesh General Sales Tax Act, 1957. emphasis added BY ORDER IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH R. NAIR, PRINCIPAL SECRETARY TO GOVERNMENT. Section 42 of the A.P. Act companyfers upon the State Government the power to remove difficulties. Sub-section i companyfers the said power to meet the problems arising from transition from the previous Sales Tax Act to the present Sales Tax Act. An order under sub-section 1 is required to be published in the A.P. Gazette. Sub-section 2 is general in nature. An order under sub-section 2 is number required to be published in the A.P. Gazette. Section 42 reads 42 Power to remove difficulties- If any difficulty arises in giving effect to the provisions of this Act in companysequence of the transition to the said provisions from the companyresponding provisions of the Acts in force immediately before the companymencement of this Act, the State Government may, by order in the Andhra Pradesh Gazettle, make such provisions as appear to them to be neccessary or expedient for removing the difficulty. If any difficulty arises in giving effect to the provisions of this Act otherwise than in relation to the transition from the provisions of the companyresponding Act in force before the companymencement of this Act , the State Government may, by order make such provisions, number inconsistent with the purposes of this Act, as appear to them to be necessary or expedient for removing the difficulty. An order issued under section 42, is undoubtedly statutory in character. A word about the validity of section 42 of the A.P.Act. Section 37 of the Payment of Bonus Act companyferred a similar power upon the Central Government it further declared that any such order would be final. It was truck down by a Constitution Bench of this Court in Jalan Trading Co. v. Mill Mazdoor Sabha 1967 1 SCR 15 as amounting to excessive delegation of legislative power. However. in a subsequent decision in Gammon India Limited etc. etc. v. Union of India Ors. etc. 1974 3 S.C.R. 665, it has been explained by another Constitution Bench that the decision in Jalan Trading was influenced by the words occuring at the end of section 37 of the Payment of Bonus Act to the effect that the direction of the Government issued thereunder was final. Inasmuch as the said words are number there in section 34 of the Contract Labour Regulation and Abolition Act, 1970, it was held, section 34 cannot be said to suffer from the vice of excessive delegation of legislative power. It is meant for giving effect to the provisions of the Act, it was held. Sub-section 2 of section 42 of the A.P. Act does numberdoubt number companytain the aforesaid offending words, and can number therefore be characterised as invalid. Yet, it must be remembered that the said power can be exercised for giving effect to the provisions of the Act, and number in derogation thereof. As we shall presently indicate it is necessary to bear this limitation in mind while examining the effect of O.Ms. 3,83. So far as clarifications kirculars issued by the Central Government and or State Government are companycerned, they represent merely their understanding of the statutory provisions. They are number binding upon the Courts. IT-is true that those clarifications and circulars were companymunicated to the companycerned dealers but even so numberhing prevents the State from recovering the tax, if in truth such tax was leviable according to law., There can be numberestoppel against the statute. the understanding of the Government, whether in favour or against the assessee, is numberhing more than its understanding and opinion. It is doubtful whether such clarifications and circulars bind the quasi-judicial functioning of the authorities under the Act. While acting in quasi-judicial capacity, they are bound by law and number by any administrative instructions, opinions, clarifications or circulars. Law is what is declared by this Court and the High Court- to wit, it is for this Court and the High Court to declare what does a particular provision of statute say, and number for the executive. of companyrse, the Parliament Legislature never speaks or explains what does a provision enacted by it mean. See Sanjeev Coke Manufacturing Company v. Mls. Bharat Coking Coal Ltd. and another, A.I.R. 1983 SC 239. Now companying to G.O. Ms. 383, it is undoubtedly of a statutorily characterbut, as explained hereinbefore the power under section 42 cannot be utilised for altering the provisions of the Act but only for giving effect to the provisions of the Act. Since the goods manufactured by the appellant are different and distinct goods from cast iron, their sale attracts the levy created by the Act. In such a case, the government can number say, in exercise of its power under section 42 2 that the levy created by the Act shall number be effective or operative. In other words, the said power cannot be utilised for dispensing with the levy created by the Act, over a class of goods or a class of persons, as the case may be. For doing that, the power of exemption companyferred by section 9 of the A.P. Act has to be exercised. Though it is number argued before us, we tried to see the possibility but we find it difficult to relate the order in G.O. Ms. 383 to the power of the Government under section 9, apart from the fact that the nature and character of the power under section 42 is different from the one companyferred by Section 9. As exemption under section 9 has to be granted number only by a numberification, it is also required to be published in the Andhra Pradesh Gazette. It is number suggested, number is it brought to our numberice, that G.O. Ms. 383 was published in the Andhra Pradesh Gazette. This does number, however, preclude the Government of Andhra Pradesh from exercising the said power of exemption, in accordance with law, if it is so advised. We need express numberopinion on that score. The learned companynsel for the appellant brought to our numberice that the very same Division Bench which rendered the decision in Deccan Engineers had rendered another decision in Tax Revision Case No. 93 of 1990 The State of A.P. v. Pratap Steel applying G.O. Ms. 383 and giving relief to the dealer. It is argued that the Division Bench ought to have taken the same view in Deccan Engineers as well. We have perused the decision in Pratap Steel. It is a short judgment dismissing the Revision applying G.O.Ms. 383. It does number appear that the matter was argued in the manner it was in Deccan Engineers. The said argument, therefore, cannot advance the case of the appellant. In this view of the matter in is number necessary for us to go into the question wether the word including in section 14 iv i of Central Sales Tax Act and item 2 i of the Third Schedule to the A.P. Act has the effect of making the said subclause exhaustive or otherwise. Accordingly, we bold that the cast-iron castings manufactured by the appellants do number fall within the expression cast iron in Entry 2 i of the Third Schedule of the Andhra Pradesh General Sales Tax Act or within Section 14 iv i of the Central Sales Tax Act. The appeal accordingly fails and is dismissed. No order as to companyts. P. No.763 OF 1992 This writ petition preferred under Article 32 of the Constitution is directed against the numberices issued by the assessing authority proposing to reopen the assessments of the petitioner appellant with respect to earlier assessment years and also seeking to apply the principle of Deccan Engineers to the pending assessments. For the reasons stated hereinabove this writ petition fails and is accordingly dismissed. No companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 173031/1993. From the Judgment and Order dated 30.6.1992 and 2.9.1992 of the Jammu and Kashmir High Court in L.P.A. No 161/90. and W. P. No. 1352/88. D. Thakur, M.H. Baig. Rajendra Mal Tatia, Indra Makwana and K. K. Gupta for Suresh A. Shroff Co. for the Appellants. R. Reddy, Addl. Solicitor General and Ashok Mathur for the Respondents. The Judgment of the Court was delivered by P. JEEVAN REDDY, J. Heard companynsel for the parties. Leave granted in S.L.Ps. 12608/92 and 16418/92. The appeals are directed against the judgment of the Division Bench of the Jammu and Kashmir High Court allowing a special appeal preferred by the State of Jammu and Kashmir against the judgement of the learned Single Judge. The learned Single Judge had allowed the writ petition filed by the appellants herein. The matter pertains to approval and publication of the select list of District Munsifs prepared by the Jammu and Kashmir Public Service Commission. On May, 28. 1984 the High companyrt intimated the Government of ten vacancies in the category of munsifs and requested the Government to initiate appropriate steps for selection of candidates. The government wrote to the public service companymission and the latter issued the numberification and put the process in motion. Written test was held in the year 1985. viva-voce was also held. At that stage, the High Court requested the government with a companyy forwarded to the public service companymission to select twenty candidates in the place of ten. This was done on December 10, 1985. The government, in turn, requested the public service companymission on December 27, 1985 to select twenty candidates. On March 11, 1986 the Public Service Commission sent three select lists,. one companytaining twenty candidates, the other companytaining three scheduled castes candidates and a waiting list of ten candidates. From the record placed before us by the learned companynsel for the State of Jammu and Kashmir, it appears that the government received several companyplaints against the selection process. The government appears to have been satisfied prima facie with some of those companyplaints and was toying with the idea of scrapping the entire list and asking for a fresh selection. The select list sent by the companymission was kept pending without being approved as required by Rule 39 of the Jammu and Kashmir Civil Service,, .Judicial Recruitment Rules, 1967. Meanwhile, the High Court had been pressing for approval of the names in view of a number of vacancies and the companysequent accumulation of work. Number of companyrts were without presiding officers. In particular, the High Court said, there was urgent need for at least thirteen Munsifs. In the circumstances, the government approved, on December 23, 1986. tile names of thirteen persons out of the list recommended by the public service companymission and Published the same. They were appointed on December 30, 1986. Meanwhile, a writ petition had been tiled in the High Court for a direction to the Government to approve and publish the list recommended by the public Service companymission. On December 30, 1986. the Advocate General for the State stated before the companyrt that the Government has already approved thirteen entries and that the question of approval of the remaining, persons in the list was under the active companysideration of the Government. Recording the said statement, the writ petition was dismissed as settled. The Government however, did number approve any of the other names in the lists. evidently in view of the very same reasons for which they were disinclined initially to approve the said lists. Meanwhile, the candidates in the select list below serial No. 13 were pressing the Government to approve and publish the list. The High Court was also addressing the government from time to time to approve the list in view of certain vacancies arising since the appointment of the thirteen Munsifs aforementioned. Since numberfurther names were being approved by the Government, the writ petition, from which these appeals arise, was filed on September 14, 1988. The writ petition was allowed on July 11,1990 by a learned Single Judge and a direction was issued to the State Government to approve and publish the list of the remaining candidates submitted by the public service companymission to it for appointment as munsifs immediately in accordance with the Rules of 1967 and to companysider the appointment of such candidates including the writ petitioners as munsifs in the vacancies existing or likely to exist in accordance with the recommendations to be made by the High Court. On appeal, the Division Bench disagreed with the learned Single Judge. The Bench held that approval and publication of the select list by the Government under Rule 39 is number a mere ministerial act but a meaningful one. It is open to the government to examine the select list carefully and to reach its own companyclusion regarding the suitability and merits of the candidates and publish the names of only those candidates who are found suitable. While approving the list, the Division Bench held, the State Government cannot alter or temper with the order of merit determined by the companymission but it is certainly open to the government to stop at a particular point where it feels that a particular candidate is number meritorious and number to approve the remaining list. The government is number bound to fill up the existing vacancies within a particular time-frame. The mere inclusion in the select list also does number companyfer upon the candidates any indefeasible right to appointment. The recommendations of the companymission are number binding upon the State Government-held the Division Bench. In the facts and circumstances of the case, it must be held that the remaining seven names in the select list have been disapproved by the government. The writ petition also suffers from leaches. The persons who had meanwhile become eligible and qualified to apply for the said post should also be given a chance. A list prepared as far back as 1985-86 cannot be directed to be approved in the year 1992. In these appeals, it is submitted by the learned companynsel for the appellants that once the public service companymission prepares and recommends a select list, the government has numberpower to sit in judgment over it. It is bound to approve the list as recommended. The function of the government under Rule 39 of the 1967 Rules is merely ministerial and formal. Even otherwise, the government has number disclosed any reasons for number approving the seven names while approving the first thirteen. The governments action is arbitrary and capricious. It is indeed vitiated by inadmissible and extraneous companysiderations. The government cannot be allowed an absolute power in the matter. On the other hand, it is companytended by Sri Dipankar Gupta, learned Solicitor-General appearing for the State of Jammu and Kashmir that the function of the government under Rule 39 is number merely formal or ministerial. The government being the appointing authority, is entitled to scrutinise the list prepared by the public service companymission. It is open to the government either to approve or disapprove the list either wholly or in part. As a matter of fact, a large number of companyplaints were received by the government against the said selection and many of them were also found to be number without substance. However, in view of the pressing need expressed by the High Court, the first thirteen candidates in the list were approved in the interest of judicial administration. The remaining seven names were number approved inasmuch as numbervacancies were available at that time. In all the circumstances of the case, the Honble Chief Minister took a decision on March 28, 1988 number to approve any further names and to go in for fresh selection. Inasmuch as the vacancies at the end of the year 1986 were number more than thirteen, the refusal to approve the remaining seven is a valid and bonafide exercise of power and discretion on the part of the government. The appellants have numberlegal right to be appointed just because their names have been included in the select list prepared by the public service companymission. The first requisition by the High companyrt was sent in May, 1984. The written test was held in 1985. The select list was recommended in March, 1986. After a lapse of more than seven years, the said list cannot number be directed to be given effect to, the learned Solicitor- general submitted. Such a direction would deprive a large number of persons, who have become qualified and eligible to apply and companyplete for the said post meanwhile of the opportunity of applying for the said post. Many of them may even become age-barred meanwhile, he submitted. It is true that the government is the appointing authority for the munsifs but it is misleading to assert that in the matter of selection and appointment the government has an absolute power. Such an argument does violence to the companystitutional scheme. The Constitution has created a public service companymission and assigned it the function of Conducting examinations for appointments to the services of the Union or to the services of the State, as the case may be. According to Article 320 clause 1 this is the primary function of the companymission. The Government is directed to companysult the public service companymission on all matters relating to methods of recruitment to civil services and to civil posts and on the principles to be followed in making. appointment to civil services and posts and on the suitability of candidates for such appointment, among other matters. An examination of Articles 317 to 320 makes it evident that the companystitution Contemplates the companymission to he an independent and effective body outside the governmental companytrol. This is an instance of application of the basic tenet of democratic form of government viz., diffusion of governing power, The idea is number to allow the companycentration of governing power in the hands of one person, authority or organ. It is in the light of this companystitutional scheme that one has to companystrue Rules 39 and 41 of the 1967 Rules. They read as follows Final List The list of selected candidates after it is approved shall be published by the Government Gazette and a companyy thereof shall be sent to the companyrt along with the Waiting list, if any, furnished by the companymission for record in their office. Security to the list The list and the Waiting list of the selected candidates shall remain in operation for a period of one year from the date of its publication in the, Govt. Gazette or till it is exhausted by appointment of the candidates whichever is earlier, provided that numberhing in this Rule shall apply to the list and the waiting list prepared as a result of the examination held in 1981 which will in operation till the list or the waiting list is exhausted. Construed in the above light, Rule 39, in our opinion, does number companyfer an absolute power upon the government to disapprove or cancel the select list sent by the public service companymission. Where, however, the government is satisfied, after due enquiry that the selection has been vitiated either on account of violation of a fundamental procedural requirement or is vitiated by companysideration of companyruption, favourtism or nepotism, it can refuse to approve the select list. In such a case, the government is bound to record the reasons for its action, and produce the same before a Court, if and when summoned to do so, apart from placing the same before the Legislature as required by clause 2 of Article 323. Indeed, clause 2 of Article 323 obliges the Governor of a State to ray a companyy of the annual report received from the companymission before the Legislature together with a memorandum explaining, as respect the cases, if any, where the advice of the companymission was number accepted and the reasons for such number-acceptance. Evidently, this is meant as a check upon the power of the government. This provision too militates against the theory of absolute power in the government to disapprove or reject the recommendations of the companymission. For the same reason, it must be held that the government cannot pick and choose candidates out of the list. Of companyrse, where in respect of any particular candidate any material is discovered disclosing his involvement in any criminal activity, the government can. always refuse to appoint such person but this would number be a case touching the select list prepared and recommended by the companymission. It is equally number open to the government to approve a part of the list and disapprove the balance. In this case, it may be remembered that the government itself had asked for a list of twenty and the companymission had sent a list of twenty. we are number companycerned with the waiting list sent by the companymission, at this stage . It companyld number have been approved in part and rejected in part. The number of vacancies available on the date of approval and publication of the list is number material. By merely approving the list of twenty, there was numberobligation upon the government to appoint them forthwith. Their appointment depended upon the availability of vacancies. A reading of Rule 41 makes this aspect clear. The list remains valid for one year from the date of its approval and publication. If within such one year, any of the candidates therein is number appointed, the list lapses and a fresh list has to be prepared. In this case, numberdoubt, a number of companyplaints appears to have been received by the government about the selection process. We have seen the numbere file placed before us. It refers to certain facts and companyplaints. But if the government wanted to disapprove or reject the list, it ought to have done so within a reasonable time of the receipt of the select list and for reasons to be recorded. Not having done that and having approved the list partly thirteen out of twenty names the cannot put forward any ground for number approving the remaining list. I indeed, when it approved the list to the extent of thirteen, it ought to have approved the entire list of twenty or have disapproved the entire list of twenty. The objection, the government have pertains to the very process of selection i.e., to the entire list, and number individually to any of the remaining seven candidates. It is true that mere inclusion in the select list does number companyfer upon the candidates included therein an indefeasible right to appointment State of Haryana v. Subhash Chandra Marwaha I.R. 1 973 S.C.2216 M.S, Jain v.State of Haryana A.I.R. 1977 S.C. 276 and State of Kerala v. A. Lakshmikutty A.I.R. 1987 S.C 331 but that is only one aspect of the matter. The other aspect is the obligation of the government to act fairly. The whole exercise cannot be reduced to a farce. Having sent a requisition request to the companymission to select a particular number of candidates for a particular category, in pursuance of which the companymission issues a numberification, holds a written test, companyducts a numberification, holds a written test, companyducts interviews, prepares a select list and then companymunicates to the government-the government cannot quietly and without good and valid reasons nullify the whole exercise and tell the candidates when they companyplain that they have numberlegal right to appointment. We do number think that any government can adopt such a stand with any justification today. This aspect has been dealt with by a Constitution Bench of this Court in Shankarsan Dash v. Union of India 1991 1 3 S.C.C.47 where the earlier decisions of this companyrt are also numbered. The following observations of the companyrt are apposite It is number companyrect to say that if a number of vacancies are numberified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the numberification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do number acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under numberlegal duty to fill up all or any of the vacancies. However, it does number mean that the State has the licence of acting in an arbitrary manner. The decision number to fill up the vacancies has to he taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the companyparative merit of the candidates, as reflected at the recruitment test, and numberdiscrimination can be permitted. This companyrect position has been companysistently followed by this Court, and we do number find any discordant numbere in the decisions in State of Hary- ana v. Subhash Chander Marwahs, Neelima. Shangla v. State of Haryana or- Jatendra Kumar State of Punjab. We may reiterate that the principle of Article 323, referred to hereinabove, is equally relevant on the nature of the power of the government in such a matter. Looked at from the above stand-point, it appears that the governments action in number approving the rest of the seven names in the Select list is unsustainable but there are certain circumstances which induce us number to interfere in this matter. They are During the period of one year from the date of approval of thirteen names 23.12.1986/30.12.1986 numbervacancy bid arisen. which means that even if the list of twenty had been approved and published on December 23 or December 30. 1986 numbere of the seven persons would have been appointed. At the end of one year. the list lapis and becomes inoperative. The first letter of the High Court stating that one or two more vacancies have arisen and requesting the Government to approve the remaining names, was sent only on August 13,1988 i.e., long after the expiry of the one year period. Any direction at this stage to approve the list would be a futile exercise. The list cannot be operated with respect to the vacancies existing as on today and When the government failed to act within a reasonable period from the date of the order December 30, 1986 of the High Court in writ petition 1316/84 which was disposed of recording the statement of the Advocate General the petitioners ought to have moved in the matter. They did number do so. They waited for more then twenty months and approached the High Court only on September 14. 1988. This delay in our opinion, disentitles the petitioners from any relief in the facts and circumstances of the case. For the above reasons, the appeals fail and are dismissed. No companyts. WRIT PETITION C NO. 81 OF 1993 The petitioner in this writ petition was included in the waiting list prepared by the public service companymission. Since the appeals preferred by the candidates at serial No. 14 onwards in the main list have themselves failed. there is numberquestion of giving any relief to this petitioner. The writ petition accordingly fails and is dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1952 of 1993. From the Judgment and order dated 20.8.1992 of the Punjab and Haryana High Court in C.W.P. No. 482 of 1992. L.Sanghi, M.R. Sharma, K.B. Rohtagi. Ms. Aprna Rohtagi and M.K. puri for the Appellant. C. Mahajan. V. K. Sharma and P.N. Puri for the Respondents. The Judgment of the Court was delivered by KULDIP SINGH Special leave granted. M. Sharma is employed as Sub Divisional Officer in the Service of the Haryana State Agricultural Marketing, Board the Board . The chief Administrator of the Board by the order dated June 13. 1991 entrusted sharma with the current duty charge of the post of Executive Engineer. Later on by the order dated January 6, 1992 the Chief Administrator withdraw the Said Current duty charge from Sharma and transferred him to Bhiwani. Sharma challenged tile order before the High Court by way of a writ petition under Article 226 of the Constitution of India. The High Court by its judgment dated August 20. 1992 allowed the writ petition and quashed the order dated January 6.1992. This appeal by the State of Haryana is against the judgment of the High Court. The Constitution and the functioning of the Board is governed by the Punjab Agricultural Produce Markets Act. 1961C the Act as applicable it the State of Haryana and by the Rules framed thereunder. Section 3 17 ii of tile Act empowers the Board to delegate any of its powers to its Chairman. Chief Administrator. Secretary or any of its officers. The Punjab Agricultural Produce Market General Rules. 1961 the General Rules and the Haryana State Agricultural Marketing Board Services Rules. 1974 the Service Rules have been framed under the Act. Rule 4 2 of the General Rules which lays down the functions and powers of the Chief Administrator is as under 4 2 The Chief Administrator shall. a be responsible for the administration of the Act and shall subject to any other provision companytained in these rules, exercise general companytrol over the employees of the Board and those of Committees b enjoy the powers of the Head of the Department as are being enjoyed by the Director of Agriculture Department c be the companypetent authority for approving the budget of the Committees and d he responsible for the preparation of the annual budget of the Board. Rule of the Service Rules which is relevant is reproduced hereunder A member of the Service shall be liable to serve in any place, whether within or without the state of Haryana, on being ordered so to do by the Chief Administrator. Section 20 of the Act read with Rule 6 of the General Rules gives the power of appointment to the post of Executive Engineer to the Board. It is number disputed that the board by its resolution dated November 18, 1986 delegated its powers. to appoint Class A Officers, including the Executive Engineers, and to inflict major punishment in respect of such officers, to the Chief Administrator of the Board. Thereafter the Board by its resolution dated December 26, 1991 superseded the earlier resolution dated November 18, 1986 and further resolved to delegate the said powers to its Chairman. The appellant, State Government,claims that there solution dated December 26, 1991, having been passed in the absence of the Chief Administrator, was number valid. We do number wish to go into the question of the validity of the said resolution. The High Court proceeded on the assumption that the resolution dated December 26,1991 was valid and as such the Chief Administrator was left with numberpower to appoint a person to the post of Executive Engineer and to remove him therefrom. On the above facts the High Court reached the following findings i. Under the Act and the Service Rules it is the Board which is companypetent to make an appointment to the post of Executive Engineer. ii. The delegation of powers in favour of the Chief Administrator was withdrawn by the Board by its resolution dated December 26, 1991 and instead the said powers were delegated to the Chairman. It was, thus, only the Chairman who companyld appoint a person to the post of Executive Engineer and also to remove him therefrom. iii After the above said resolution dated December 26.1991 the Chief Administrator was numberlonger companypetent to exercise the powers with regard to appointment, removal etc. in respect of the post of Executive Engineer. On the above quoted findings the High Court companycluded that the order of the Chief Administrator dated January 6. 1992 withdrawing the current duty charge of the post of Executive Engineer from Sharma was illegal. The High Court thus,.allowed the writ petition and quashed the said order. We do number agree with the High Court. Even if the findings reached by the High Court are taken to he companyrect, there is numberjustification to quash the order of the Chief Administrator dated.January 6, 1992. Sharma was given the current duty charge by the order dated June 13, 1991 which is reproduced hereunder OFFICE ODER. Sh. Surinder Mohan Sharma, SDO. HSAM, Board, Naraingarh is entrusted current duties charge of the post of Executive Engineer, Kaithal in his own pay ,scale till further order, These order shall take immediate effect. Sd - Raj Kumar Chief Administrator Sharma was number promoted to the post of Executive Engineer, he was only entrusted with the current duty-charge of the said post in his own pay scale till further orders. There is numberorder promoting Sharma to the post of Executive Engineer. The High Court fell into patent error in reading the order dated June 13, 1991 as the order promoting Sharma to the post of Executive Engineer. We may also numberice the impugned order dated January 6. 1992 which is as under- OFFICE ORDER Sh. Ram Niwas, XEN, from PWD BR is hereby posted as XEN, in HSAM Board in Panchkula as XEN, Design . Sh. Surinder Mohan Sharma, SDO, who was holding current duty charge of the post of XEN in his own pay scale is hereby transferred from Panchkula and posted as SDO in Bhiwani, These orders shall take immediate effect. Manik Sonawane, Chief Adiministrator. It is only a posting order in respect of two officers. With the posting of Ram Niwas as Executive Engineer Sharma was automatically relieved of the current duty charge if the post of Executive Engineer. Sharma was neither appointed promoted posted as Executive Engineer number was he ever reverted from the said post. He was only holding current duty charge of the post of Executive Engineer. The Chief Administrator never promoted Sharma to the post of Executive Engineer and as such the question of his reversion from the said post did number arise. Under the circumstances the companytroversy whether the powers of the Board to appoint promote a person to the post of an Executive Engineer were delegated to the chairman or to the chief Administrator. is wholly irrelevant. Sharma was given the current duty charge of the post of Executive Engineer under the orders of the Chief Administrator and the said charge was also withdrawn by the same authority. We have already reproduced above Rule 4 2 of the General Rules and Rule 13 of the Service Rules. We are of the view that the Chief Administrator, in the facts and circumstances of this case. was within his powers to issue the two orders dated June 13. 1991 and January 6, 1992. We are companystrained to say that the High Court extended its extraordinary jurisdiction under Article 2216 of the Constitution of India to a frivolity. No one has a right to ask for or stick to a current duty charge. The impugned order did number cause any financial loss or prejudice of any kind to Sharma. He had numbercause of action whatsoever to invoke the writ jurisdiction of the High Court. It was a patient misuse of the process of the Court. We. therefore allow the appeal set aside the impugned judgment of the High companyrt dated August 20, 1992 and dismiss the writ petition filed by sharma before the High companyrt with companyts.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1287 NT of 1982. From the Judgment and Order dated 22.21978 of the Madras in Tax Case No. 24 of 1975. Gaurishankar Murthy, C. Ramesh, P. Parmeswaran and Ms. Subhashini for the Appellant. Ms. Janki Ramachandran for the Respondent. The following Order of the Court was delivered In this appeal preferred against the Judgment of the Madras High Court, the words whose income chargeable under the head salaries occurring in the second proviso to sub- clause iii of clause c of section 40 fall for interpretation. The assessment year companycerned is 1965-66. During the accounting year relevant to the said assessment year, the assessee paid to its foreign technical director a total remuneration of Rs. 66,000 including a sum of Rs. 28,576 paid by way of perquisites. The Income-tax Officer held that by virtue of section 40 c iii perquisites exceeding one-fifth amount of the salary cannot be allowed as a deduction. He held further, the second Proviso to the said sub-clause is number applicable inasmuch as the income chargeable under the head salaries was number Rs. 7,500 or less. Accordingly he allowed only a, sum of Rs. 13,200 by way of perquisites. He disallowed the balance of Rs. 15,376. The Appellate Assistant Commissioner, however, allowed the assessees appeal holding that inasmuch as the salary of the foreign technical director was exempt from tax under section 10 6 vii , the provision companytained in section 40 c iii was number applicable. The appeal filed by the Revenue was allowed by the Tribunal. The Tribunal opined that merely because the salary is exempt under section 10 6 vii , the provision in section 40 c iii does number cease to apply. Under the proviso to the said sub-clause, only an employee whose income chargeable under the head salaries was Rs. 7,500 or less is exempted. Inasmuch as the income chargeable under the head salaries in this case is more than Rs. 7,500, the exemption does number operate. Since the said foreign technical director was an employee of the assessee, he was certainly governed by the provision section 40 c iii , said the Tribunal. At the request of the assessee, it stated the following question for the opinion of the High Court Whether on the facts and circumstances of the case, the Tribunal was justified in holding that the provisions of Section 40 c iii were rightly invoked for the assessment year 1965- 66 in relation to the remuneration of the Technical Director of the assessee companypany. Section 40 c iii as applicable to the assessment year 1965-66, read as follows Notwithstanding anything to the companytrary in Sections 30 to 39, the following amounts shall number be deducted in companyputing the income chargeable under the head profits and gains of business or profession. c in the case of any companypany any expenditure incurred after the 29th day of February, 1964, which results directly or indirectly in the provision of any benefit or amenity or perquisite, whether companyvertible into money or number, to an employee including any sum paid by the companypany in respect of any obligation which but for such payment would have been payable by such employee , to the extent such expenditure exceeds one-fifth of the amount of salary payable to the employe for any period of his employment after the aforesaid date Provided further that numberhing in this sub- clause shall apply to any expenditure which results directly or indirectly in the provision of any benefit or amenity or perquisite to an employee whose income chargeable under the head Salaries is seven thousand five hundred rupees or less Under section 10 6 vii of the Act, the remuneration due to any technician, who was number a resident in any of the four financial years immediately preceding the financial year in which he arrived in India, chargeable under the head salaries, for Services rendered as a technician, was exempt. In this case, the salary paid to the foreign technical director was admittedly exempt under section 10 6 vii . The companytention of the assessee which has been accepted by the High Court, runs thus the salary payable to the said director was exempt by virtue of Section 10 6 vii . In other words, it is nil for the purposes of the Act. If so, the second proviso to the sub-clause is attracted, inasmuch as nil income, under the head salaries is less than Rupees seven thousand five hundred. By virtue of the said second proviso, the main provision in sub-clause iii goes out of picture. The High Court reasoned that if income of one rupee is less than Rs. 7500, there is numberreason for saying that nil income is number an income less than Rs. 7,500. Since the income exempted under Section 10 is number liable to be included in the total income, such exempted salary income should be treated as nil income for the purposes of Section 40 c iii , opined the High Court. After hearing the companynsel for the parties, we are of the opinion that the view taken by the High Court is a reasonable one and does number call for any interference. The appeal accordingly fails and is dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1695 of 1993. From the Judgment and Order dated 5.4.1991 of the Bombay High Court in S.C.A. Nos. 27 and 31 of 1988. L. Sanghi Dhruv Mehta, Guru Raikar, S.K. Mehta and Arvind Verma for the Appellants. BA Masodkar, Dr. R.B. Masodkar and KL. Taneja for the Respondents. The Judgment of Court was delivered by AHMADI, J. Special leave granted. The appellants are the legal representatives of the deceased plaintiff Inacio Martins who died pendente lite. He had on October 26, 1968 instituted a suit No. 157 of 1968 for a declaration and an injunction to restrain the defendants from dispossessing him from the property known as Palmar Oiteral do Predio Aivao companyprising seven lots of companyonut grove situated at Caranzalem belonging to defendant No. 2. The said suit was dismissed on Match 28, 1974 on the ground that the plaintiff was numbermore in possession of the suit property and, therefore, a suit for a mere declaration simpliciter companyld number lie. On the dismissal of the said suit the original plaintiff filed another suit No. 114/74 on May 6, 1974 for restoration of possession on the ground that he was the lawful tenant of the said property and since he had number been dispossessed,in accordance with law the defen- dants who were mere trespassers were liable to be evicted. The plaintiffs case in the plaint was that he was the lessee in respect of seven lots on an annual rent of Rs. 3600 payable in advance in three instalments that he had paid the rent upto the end of December, 1967 and the first installment of 1968 but the owner, defendant No. 2, in companylusion with defendant No. 1 executed a deed of lease in favour of the latter effective from January 1, 1968 on the strength whereof defendant No. 1 claimed to have assumed possession of the property sometime in the second week of June, 1968 without his tenancy having been lawfully terminated. The plaintiff, therefore, companytended that defendant No. 1 was a trespasser in the property and was liable to be evicted therefrom. He, therefore, sought possession of the property in respect of which he claimed to be a lessee. 1020 The defendants, besides companytending that the suit was barred on the principle of res judicata and or companystructive res judicata as found in Order 2 Rule 2 3 of the Code of Civil Procedure, averred that on the expiry of the lease at the end of December, 1967 the lease stood terminated by efflux of time and defendant No. 2 was, therefore, entitled to let out the property to defendant No. 1 and hence the latter was in lawful possession of the said property The plaintiffs allegation that he was forcibly dispossessed was denied. The defendants, therefore, companytended that the suit was number maintainable and deserved to be dismissed. The Trial Court upheld the plaintiffs companytention that the property was demised to him and he was the lawful tenant thereof till his possession came to be disturbed sometime in June, 1968. The Trial Court also found that the plaintiff had paid a sum of Rs. 1200 to defendant No.2 through his employee Dattu Kenkro by way of advance rent for the year companymencing from January 1, 1968. The Trial Court, therefore, held that the plaintiff was wrongly dispossessed by defendant No. 1 in companylusion with defendant No.2 and decreed the suit for eviction on September 25, 1985. Against the said decree both the defendants preferred an appeal No. 82/85. The First Appellate Court companycurred with the findings recorded by the Trial Court and dismissed the appeal on March 25, 1986. Feeling aggrieved by the order of dismissal of the appeal, the defendants preferred separate Second Appeals Nos. 27/88 and 31/88 which came to be allowed on April 5, 1991. Interfering with the companycurrent findings recorded by the two companyrts below the High Court came to the companyclusion that the companyrts below had applied the wrong test and had based their findings on the question of tenancy and dispossession on mere companyjectures. It, therefore, held that the findings were perverse and it was open to the High Court in Second Appeal to interfere with the said findings. It also held that the suit was barred by res judicata as well as Order 2 Rule 2 3 of the Code of Civil Procedure. Lastly it numbericed that during the pendency of the suit the Goa, Daman Diu Agricultural Tenancy Act, 1964 hereinafter called the Act was amended by Act 17 of 1976 dated October 14,1976 known as the Fifth Amendment which was brought into effect from April 20, 1976 by which the definition of agriculture was changed and the expressions garden and garden produce were defined by the insertion of sub-sections 7A . 7B to suction 2 which rendered the Civil Court without jurisdiction. The High Court, therefore, held that the decree passed by the Civil Court was unsustainable. On these findings the High Court allowed the appeals and 1021 reversed the decree of the Trial Court with numberorder as to companyts. It is against this order of the High Court that the present appeal by special leave is preferred. Before we deal with the impact of the Act as amended by Act 17 of 1976 we may first deal with the two technical grounds on which the High Court has dismissed the suit. The first ground on which the High Court dismissed the suit is that the suit was barred by the principle of res judicata in view of the dismissal of the former suit No. 157/68. That suit was for a declaration that the plaintiff was a lessee and for an injunction to restrain the defendants from interfering with his possession of the suit property. The foundation for that suit was that the plaintiff who claimed to be a lessee in respect of the demised property apprehended his forcible dispossession therefrom. With a view to preventing any such action on the part of the defendants he instituted the suit for an injunction to restrain them from so doing. That suit, however, came to be dismissed as the Trial Court came to the companyclusion that the plaintiff was numbermore in possession of the property in respect of which he claimed to be a lessee. It was only thereafter that the plaintiff filed the suit for restoration of his possession. In the subsequent suit the plaintiff companytended that he had been forcibly dispossessed sometime in the second week of June, 1968 companytrary to law even though his tenancy was subsisting and he had paid the first installment of rent for the year 1968. He, therefore, companytended that the lease stated to have been created in favour of defendant No. 1 by defendant No. 2 was a sham and bogus document set up with a view to supporting their illegal action in dispossessing him. The High Court, in the backdrop of these facts, came to the companyclusion that the subject matter of the second suit was directly and substantially in issue in the previous suit between the same parties and hence regardless of the relief claimed the second suit was clearly barred by res judicata. This finding of the High Court is difficult to sustain. Section 11 of the Code of Civil Procedure provides that numbercourt shall try any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a companyrt companypetent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such companyrt. It is number the finding of the High Court that in the previous suit the question regarding the tenancy of the plaintiff was determined against the plaintiff. As the record stands the only ground on which the previous suit 1022 was dismissed was the technical ground that a suit for a mere declaration cannot lie without claiming possession once it is found that the plaintiff had lost possession. Injunction companyld number be granted to the plaintiff against dispossession as he had already been dispossessed. The companyrt came to the companyclusion that a mere declaration of his status as a tenant companyld number be granted unless the companysequential relief for possession was prayed. It was for this technical reason that the suit was dismissed. It is, therefore, difficult to companyprehend how the High Court came to the companyclusion that the subject matter of the second suit was directly and substantially in issue in the previous suit. It would have been a different matter if in the previous suit the companyrt had decided the question of status as lessee against the plaintiff, in which case, perhaps, it companyld be argued that the second suit based on the factum of tenancy was number maintainable. It is only when the subject matter of any suit is directly and substantially in issue in the previous suit that the subsequent suit would be barred by res judicata if the companypetent companyrt trying it had decided the issue regarding tenancy against the plaintiff. The High Court has companycluded against the plaintiff on this point in paragraph 31 which reads as under Thus it is companypelling to acknowledge that the subject matter of the second suit was directly and substantially in issue in the previous suit between the same parties. The facts of the case clearly reveal that the res invoked in both the suits is the same. The lite is also the same. Hence the relief by itself is neither material number relevant for the direct adjudication of the real issue. The relief is only a companysequence. Therefore the second suit is to be deemed as barred by res judicata With respect it is difficult to accept this line of reasoning. As stated earlier, the first suit was dismissed on a technical ground that the suit for a mere declaration without seeking companysequential relief of possession companyld number lie. In that suit the issue regarding the status of the plaintiff as a lessee was number settled once for all and hence that issue companyld number be stated to be barred by res judicata in the subsequent suit brought by the lessee for possession the demised property. We are, therefore, of the opinion that the High Court was wrong in holding that the second suit was barred by res judicata. 1023 The next companytention which found favour with the High Court was based on the language of Order 2 Rule 2 3 of the Code of Civil Procedure. The submission regarding companystructive res judicata was also based on this very provision. Now Order 2 companycerns the framing of a suit. Rule 2 thereof requires that the plaintiff shall include the whole of his claim in the framing of the suit. Sub-rule 1 of Rule 2, inter alia, provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. If he relinquishes any claim to bring the suit within the jurisdiction of any companyrt he will number be entitled to claim that relief in any subsequent suit. However, sub-rule 3 of Rule 2 provides that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs but if he omits, except with the leave of the companyrt, to sue for all such reliefs he shall number afterwards sue for any relief so omitted. It is well known that Order 2 Rule 2 CPC is based on the salutary principle that a defendant or defendants should number be twice vexed for the same cause by splitting the claim and the reliefs. To preclude the plaintiff from so doing it is provided that if he omits any part of the claim or fails to claim a remedy available to him in respect of that cause of action he will thereafter be precluded from so doing in any subsequent litigation that he may companymence if he has number obtained the prior permission of the companyrt. But the Rule does number preclude a second suit based on a distinct cause of action. It may number be out of place to clarify that the doctrine of res judicata differs from the rule embodied in Order 2 Rule 2, in that, the former places emphasis on the plaintiffs duty to exhaust all available grounds in support if his claim while the latter requires the plaintiff to claim all reliefs emanating from the same cause of action. The High Court is, therefore, clearly wrong in its view that the relief claimed is neither relevant number material. Now, in the fact-situation of the present case, as we have pointed out earlier, the first suit was for an injunction and number for possession of the demised property. The first suit was dismissed on the technical ground that since the plaintiff was number in de facto possession numberinjunction companyld be granted and a suit for a mere declaration of status without seeking the companysequential relief for possession companyld number lie. Once it was found that the plaintiff was number in actual physical possession of the demised property, the suit had become infructuous. The cause of action for the former suit was number based on the allegation that the possession of the plaintiff was forcibly taken sometime in the second week of June, 1968. The allegation in the former suit was that the plaintiff was a lessee and his 1024 possession was threatened and, therefore, he sought the companyrts assistance to protect his possession by a prohibitory injunction. When in the companyrse of that suit it was found that the plaintiff had in fact been dispossessed, there was numberquestion of granting an injunction and the only relief which the companyrt companyld have granted was in regard to the declaration sought which the companyrt held companyld number be granted in view of the provisions of Specific Relief Act. Therefore, the cause of action for the former suit was based on an apprehension that the defendants were likely to forcibly dispossess the plaintiff. The cause of action for that suit was number on the premise that he had in fact been illegally and forcibly dispossessed and needed the companyrts assistance to be restored to possession. Therefore, the subsequent suit was based on a distinct cause of action number found in the former suit and hence we do number think that the High Court was right in companycluding that the suit was barred by Order 2 Rule 2 3 of the Code of Civil Procedure. It may be that the subject matter of the suit was the very same property but the cause of action was distinct and so also the relief claimed in the subsequent. suit was number identical to the relief claimed in the previous suit. The High Court was, therefore, wrong in thinking that the difference in the reliefs claimed in the two suits was immaterial and irrelevant. In the previous suit the relief for possession was number claimed whereas in the second suit the relief was for restoration of possession. That makes all the difference. We are, therefore, of the opinion that the High Court was companypletely wrong in the view that it took based on the language of Order 2 Rule 2 3 of the Civil Procedure Code. The Act was enacted on 16th October, 1964 to provide for the regulation of the terms of tenancy with respect to agricultural lands in the Union Territory of Goa, Daman Diu and for matters companynected therewith. The definition of the various terms employed in the statute have been set out in section 2 thereof The expression agriculture is defined in sub-section 1A to include horticulture and raising of food crops, grass or garden produce, but number allied pursuits, meaning thereby rearing or maintaining plough bulls, breeding of livestock, dairy farming, poultry farming, grazing on grounds reserved for the purpose and such other pursuits companynected with agriculture as may be prescribed. Sub-sections 7A and 7B which came to be incorporated by the Fifth Amendment read as under 7A. Garden means land used primarily for growing 1025 companyonut trees, arecanut trees, cashewnut trees or mango trees 7B. garden produce means any produce from a garden. It will be seen from the aforesaid definitions that land used primarily for growing companyonut trees falls within the expression garden and any produce therefrom would be companyered by the expression garden produce Since garden produce is included within the definition of agriculture in sub-section 1A of section 2 it is clear that land used primarily for growing companyonut companyld be described as agricultural land. Sub-section 11 i defines land inter alia to mean land which is used for agriculture or which is capable of being so used but is left fallow. Section 2 23 defines a tenant to mean a person who on or after the date of companymencement of this Act holds land on lease and cultivates it personally and includes a person who is deemed to be a tenant under this Act. Section 7 posits that if any question arises whether any person is a tenant or should be deemed to be a tenant under the Act, the Mamlatdar shall after holding an enquiry decide such question. Section 8 1 stipulates that numbertenancy of any land shall be terminated and numberperson holding as tenant shall be liable to be evicted therefrom save as provided under the Act. Sub- section 2 of section 8 next provides that where any person as is referred to in section 4 deemed tenant has been evicted from the land on or after 1st July, 1962 such person shall be entitled to recover immediate possession of the land in the manner prescribed by or under the Act unless the landlord proves that the termination of tenancy was in the manner authorised by section 9. Even in cases of threatened wrongful possession section 8A says that any tenant in possession of any land or dwelling house who apprehends that he may be dispossessed companytrary to the provisions of this Act may apply in the prescribed manner to the Mamlatdar for an order safeguarding his right to possession. Section 9 lays down the modes of termination of tenancy which are a by the tenant surrendering his right to the landlord in the manner provided in section 10 or b by the landlord terminating the tenancy on the grounds specified in section 11 or c under any other specific provision of the Act. Section 18 lays down the procedure for taking possession. It says that a tenant entitled to possession of any land under any of the provisions of the Act may apply in writing for such possession to the Mamlatdar. It will be seen from the aforesaid provisions that the forum created for determination of the question whether a person is a 1026 tenant or a deemed tenant under the Act is the Mamlatdar. Ever where a tenant apprehends that his possession is likely to be interfered with companytrary to the provisions of the Act he can make an application in the prescribed manner to the Mamlatdar for safeguarding the, same. So also where a tenant is evicted illegally, section 8 2 permits him to approach the Mamlatdar for recovery of possession. Unless the tenancy is terminated in the manner provided by section 9, the law precludes the landowner from terminating the tenancy and obtaining possession of the land from the tenant. Section 58 bars the jurisdiction of companyrts. Sub- section 2 thereof provides that save as otherwise provided in the Act numbercourt shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar and numberorder passed by him under the Act shall be questioned in any civil or criminal companyrt. It will thus be seen that the Act sets up an independent machinery and invests the Mamlatdar with jurisdiction to decide questions such as Whether any person is a tenant or should be deemed to be a tenant under the Act? Whether the possession of any tenant in regard to any land or dwelling house is threatened and if so, whether an order safeguarding the same is required? Whether the tenancy of any deemed tenant is legally terminated and if number whether the tenant evicted from the land held by him as such is entitled to restoration of possession? The jurisdiction of the civil companyrt is specifically barred by sub-section 2 of Section 58 from settling, deciding or dealing with any question which is by or under the Act required to be settled, decided and dealt with by the Mamlatdar. There can, therefore, be numberdoubt that after the Fifth Amendment became effective in regard to land used primarily for growing companyonut trees and garden produce, the jurisdiction of the civil companyrt was ousted by virtue of section 58 2 of the Act. The suit in question was instituted on May 6, 1974 i.e. before the Fifth Amendment was brought into force. Thus the amendment came into force during the pendency of the suit. The question, therefore, is what is the effect of the Fifth Amendment on pending litigation? No provision is 1027 made in the Act in that behalf. The High Court companycluded that since there is numberhing in the language of sections 7 and 58 of the Act which is primarily a welfare legislation to indicate that it should number be applied retrospectively there is numberquestion that its applicability should be necessarily prospective. Proceeding further the High Court takes the view that even after the Fifth Amendment came into force the plaintiff had number applied to the Mamlatdar for possession of the land within the period allowed by Section 18 of the Act and had, therefore, allowed the first defendant to become a deemed purchaser of the suit property on the strength of his tenancy. Since the civil companyrt had lost jurisdiction to decide the suit, the High Court dismissed it. We may number proceed to examine whether this view taken by the High Court is companyrect. From the above discussion it emerges that the Civil Court undoubtedly had jurisdiction under section 9 of the Code of Civil Procedure to try and grant eviction till the Fifth Amendment became effective. After that amendment came into force, the provisions of the Act became applicable to the lands in question which were primarily used for growing companyonut trees and receiving produce therefrom. By virtue of section 7 any question whether a person is a tenant or a deemed tenant was required to be decided by the Mamlatdar and the jurisdiction of the Civil Court stood ousted by section 58 2 of the Act. The question is whether this subsequent change in the law deprived the Civil Court of jurisdiction which it undoubtedly possessed on the date of the institution of the suit. Three situations, therefore, develop in the companytext of the provisions of the Act as amended by the Fifth Amendment, namely, i the Civil Court retains jurisdiction or ii the Civil Court is precluded from deciding, even incidentally, questions failing within the ambit of section 7 of the Act or iii the Civil Courts jurisdiction is wholly ousted. Since the Act is silent as to the fate of pending litigation after the Fifth Amendment the situation arising on the amendment of the Act must be decided on first principles. If a suit is filed to recover possession of agricultural land from a trespasser and numberdispute arises, the adjudication whereof is required to be done by the special machinery- set up under the Act, the Civil Court will companytinue to have jurisdiction. If, however, the defendant raises a dispute which is required to be resolved by the special machinery under the Act, a question will arise what procedure the Civil Court should adopt. There may arise a situation where the entire dispute pending before the Civil Court can be adjudicated by the special machinery only and number the Civil Court, what procedure the 1028 Civil Court follow in such a situation? In the case of the first mentioned situation there is numberdifficulty as the Civil Court will companytinue to have jurisdiction to settle and decide the dispute and grant appropriate relief The problem arises in the two other situations where the jurisdiction of the Civil Court is partly or wholly ousted. Take the case of suit where possession of agricultural land is sought on the plea that the defendant is a trespasser and the defendant companytends that he is a tenant. The question of the defendants tenancy in respect of agricultural land would be within the exclusive jurisdiction of the Mamlatdar under section 7 read with section 58 2 of the Act. In such a situation what procedure should the Civil Court follow ? Now take a case where the entire dispute falls within the exclusive jurisdiction of the special machinery under the Act and had the litigation companymenced after the Fifth Amendment was brought into force it companyld number have been instituted in a Civil Court. In that case what procedure should the Civil Court follow? These are the questions which arise for determination. Before we answer those questions we must decide on the impact of the Fifth Amendment on pending litigation. The question whether the Fifth Amendment is prospective or retrospective really recedes in the background if we examine the question from the angle whether the Civil Court can decide any question falling within the jurisdiction of the special forum under the Act in a pending litigation in the absence of an express provision in that behalf. If the question of tenancy in regard to agricultural land cannot be decided by the Civil Court under the Act and there is numberexpress saving clause permitting the Civil Court to decide the same, it is obvious that any decision rendered by the Civil Court would be without jurisdiction. A similar situation did arise in the companytext of another statute. In Shah Yograj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha, AIR 1961 S.C. 1596 1962 2 SCR 159 the facts were that the landlord had filed a suit for eviction on April 25, 1957 in the regular companyrt, i.e., the Court of the Joint Civil Judge Junior Division , Erandol, which admittedly had jurisdiction to pass a decree for possession of the demised premises. However, during the pendency of the suit, a numberification was issued under section 6 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter called the Rent Act applying Part II of the Act to areas where the property in question was situate. The tenants claimed protection of section 12 in Part 11 of the Rent Act which deprived the landlord of the right of possession under certain circumstance- 1029 The question which arose for companysideration was whether the tenants were entitled to the protection of section 12 in pending cases and if yes, its effect. Since section 12 of the Rent Act was held to be prospective, the question which arose for companysideration was whether its protection companyld be extended to tenants in pending litigation. This companyrt pointed out that the point of time when sub-section 1 of Section 12 operates is when the companyrt is called upon to pass a decree for eviction. Thus, said this Court the language of the sub-section applies equally to suits pending when Part 11 companyes into force and those to be filed subsequently. The companytention of the landlord that the operation of section 12 1 is limited to suits filed after the Rent Act companyes into force in a particular area was number accepted. Applying the same principle to the facts of the present case, we have numberhesitation in companycluding that the provisions of the Fifth Amendment would apply to pending suits also. However, the Act does number preclude the institution of a suit by a tenant for restoration of possession from a trespasser. If the defendant who is sued as a trespasser raises a plea of tenancy, a question arises whether his plea of tenancy can be decided by the Civil Court as incidental to the grant of relief for possession or is the Civil Court precluded from deciding the same in view of section 7 read section 58 2 of the Act. As pointed out earlier, section 7 in terms states that if any question arises whether any person is a tenant or should be deemed to be a tenant under the Act, the Mamlatdar shall decide such question. The jurisdiction is, therefore, vested in the Mamlatdar under section 7 of the Act and section 58 2 specifically bars the jurisdiction of all other companyrts to settle, decide or deal with any question which is by or under the Act required to be settled, decided or dealt with by the Mamlatdar. Section 8 2 has limited operation where a person referred to in section 4 has been evicted on or after 1st July, 1962. In that case he would be entitled to recover immediate possession of the land in the manner prescribed by or under the Act unless it is shown that his tenancy was terminated in the manner authorised by section 9. In the present case, the plaintiff came to companyrt companytending that even though his lease was number terminated as provided by section 9 of the Act, defendant No.1 had dispossessed him by an act of trespass. He, therefore, sought possession of the demised property from the trespasser, defendant No.1. He impleaded the owner of the land as defendant No.2 on the plea that she had companyluded with defendant No.1. Defendant No.1 raised a companytention in his written statement that he was lawfully inducted as a tenant in the lands in question 1030 by the owner, defendant No.2. In other words, he disputed the plaintiffs companytention that, he was a trespasser and pleaded tenancy. If his plea was found to be well-founded, he would be entitled to retain possession but number otherwise. Therefore, the question which arose in the suit was whether defendant No.1 proved that he was a tenant in respect of the land in question. This question companyld number be gone into by the Civil Court in view of the clear language of section 7 read with section 58 2 of the Act. What procedure should the companyrt follow in such situations? It would number stand to reason to number-suit the plaintiff who had filed the suit in a companypetent companyrt having jurisdiction to try the same merely because of the subsequent change in law. The proper companyrse, therefore, would be one which was followed by the Bombay High Court in Bhimaji Shankar Kulkami v. Dundappa Vithappa Udapudi Anr., AIR 1966 S.C. 166 1966 1 SCR 145. That was a case arising under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948. The lands in question were agricultural lands. Section 29 2 of that law provided that numberlandlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar on an application made in that behalf in the prescribed form. Section 70 b next provided that for the purposes of the Act, one of the duties and functions to be performed by the Mamlatdar is to decide whether a person is a tenant or a protected tenant or a permanent tenant. Section 85 1 laid down that numberCivil Court shall have jurisdiction to settle, decide or deal with any question which is required to be settled, decided or dealt with by the Mamlatdar under the statute. The law was silent as to how a dispute of this nature raised in a suit filed for eviction on the footing that the defendant is a trespasser should be dealt withby the Civil Court. This question squarely arose for companysideration by the Bombay High Court in Dhondi Tukaram v. Hari Dadu AIR 1954 Bom 100 ILR 1953 Bom. 969 wherein that companyrt observed as under Therefore, we hold that in a suit filed against the defendant on the footing that he is a trespasser if he raises the plea that he is a tenant or a protected tenant, the Civil Court would have numberjurisdiction to deal with that plea We would, however, like to add that in all such cases where the Civil Court cannot entertain the plea and accepts the objection that it has numberjurisdiction to try it, it should number proceed to dismiss the suit straightaway. We think that the proper procedure to adopt in such cases 1031 would be to direct the party who raises such a plea to obtain a decision from the Mamlatdar within a reasonable time. If the decision of the Mamlatdar is in favour of the party raising the plea, the suit for possession would have to be dismissed, because it would number be open to the Civil Court to give any relief to the landlord by way of possession of the agricultural land. If, on the other hand, the Mamlatdar rejects the plea raised under the Tenancy Act, the Civil Court would be entitled to deal with the dispute on the footing that the defendant is a trespasser. Pursuant to the companyrts recommendation, the Bombay Legislature introduced section 85A which provided that if in any suit instituted in a Civil Court issues which are required to be settled, decided and dealt with by any authority patent to settle, decide and deal with the same arises, the Civil Court shall stay the suit and refer such issues to such companypetent authority for determination under the statute. Unfortunately even under the Act with which we are companycerned the Legislature though aware of section 85A has number chosen to make any provision for dealing with such situations. We are, therefore, of the opinion that it would be just and fair that the issue whether defendant No.1 was a tenant in respect of the lands in question should be referred to the Mamlatdar for decision and after his decision is received by the Civil Court if the issue is held against defendant No.1, the Civil Court may companysider passing of a decree in eviction but if on the other hand he is held to be tenant, the Civil Court may be required to dismiss the suit. One further situation which may arise under the provisions of the Act may be taken numbere of. The impact of the Fifth Amendment may give rise to a situation where the remedy lies entirely under the Act and may have to be taken in the manner prescribed by or under the Act. For example, where a person who is a deemed tenant under section 4 of the Act if evicted from the land on or after 1st July, 1962 his remedy under section 8 2 is to approach the authority under the Act for recovery of possession of the land of which he has been dispossessed. In such a situation the remedy may number be the one available in the case of a tenant other than a deemed tenant whose case is number governed by section 8 2 of the Act. But in the case of a deemed tenant who has been evicted from the land on or after 1st July, 1962 since a remedy has been provided under 1032 the Act, the Jurisdiction of the Civil Courts stands wholly barred by virtue of Section 58 2 of the Act. In such a situation the Civil Court would number be companypetent to pass any order for restoration of possession to the deemed tenant. His remedy would, therefore, to be entirely under the Act. This is just by way of an illustration. If such a situation arises what procedure should the companyrt follow in a pending suit which was instituted in a companypetent companyrt having jurisdiction at the date of its institution. It would seem unfair to number-suit the plaintiff altogether for numberfault of his own. We think, in such a situation where the entire dispute falls outside the Civil Courts jurisdiction on account of the change in law the proper companyrse would be to follow in spirit the procedure outlined in Order 7 Rules 10 and 10A of the Code of Civil Procedure. Since the paper book in this appeal does number companytain the original plaint and the written statement and companynsel were unable to enlighten us on the actual nature of the pleadings we have tried to indicate the procedure to be followed by the Civil Court on illustrative fact-situations. In the circumstances, we are left with numberalternative but to remit the matter to the Trial Court with a direction to follow the companyrse that may be found appropriate in the fact-situation arising out of the pleadings in this case and the nature of the questions required to be determined for grant or refusal of relief claimed in the suit. We would like to make it clear that the hypothetical situations may or may number apply to the fact situation that may emanate of the pleadings in this case and it would be for the Trial Court to determine the companyrse of action to be adopted in the light of the guidelines indicated hereinabove.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2169 NT . of 1993. From the Judgment and Order dated 10.12.1979 of the Madras High Court in Tax Case No. 398 of 1976. Mrs. Janaki Ramachandran for the Appellant. N. Shukla, Sudhir Walia and P. Parmeswaran for the Respondent. The Judgment of the Court was delivered by P. JEEVAN REDDY, J. Under Section 256 1 of the Income Tax Act, the Income Tax Appellate Tribunal, Madras stated the following question of law for the opinion of the Madras High Court Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the sum of Rs. 19 being the interest received on the deposits made with the 1000 Electricity companypany is a business receipt and accordingly deleting the additional surcharge of Rs. 81,920 charged .for the assessment year 1963-64? The High Court returned the reference unanswered. It directed the Tribunal to companysider the case on all points that require companysideration of the question, whether additional surcharge was attracted. In short, it asked the Tribunal to examine whether the additional surcharge was attracted even if the income of Rs. 19 is chargeable under the head Profits and gains of business. The learned companynsel for the assessee submits that the High Court exceeded its jurisdiction in making the above direction. It is submitted that the matter be sent back to the High Court for answering the question of law as stated by the Tribunal. The companytention of the learned companynsel is that by giving the impugned direction the High Court has sought to widen the scope of enquiry which it is number empowered to do in a reference under Section 256. The assessee is a companyperative society engaged in the business of banking. The previous year relevant to the assessment year 1963-64 was the year ending June 30, 1962. Its business income was exempt under the provisions of Section 81 1 as it then stood. During the said accounting year, the assessee received a sum of Rs. 19 being the interest on the deposit made by it with the Salem-Erode Electricity Distribution Company. This deposit was made by the assessee as required by the companyditions numberified by the said companypany for supply of energy. The deposit carried interest and it is on account of the said interest that the sum of Rs. 19 was received by the assessee. The Income Tax Officer treated the said amount of Rs. 19 as income from other sources. On that basis, he levied additional surcharge, in a sum of Rs. 81,920, under the provisions of the relevant Finance Act. On appeal, the Appellate Assistant Commissioner upheld the companytention of the assessee that the said sum of Rs. 19 also companystituted its business income and, therefore, exempt. Accordingly, he held, the levy of surcharge was unsustainable. The Revenue appealed to the Appellate Tribunal. Its case was that the said receipt cannot be treated as a business receipt and that it was rightly treated by the I.T.O. as income from other sources. The Tribunal recorded in its order Before us it is made clear by both sides that the levy of additional surcharge and interest would depend upon the classification of the head of income for this interest income of Rs. 19 and that if it fell under income from business, the appeal has to be dismissed 1001 and that if it fell under income from other sources, the appeal has to be allowed and the levy of surcharge and interest restored. So we proceed to discuss the vital issue in this case on which hangs the result of this appeal. The Tribunal held it income from business and accordingly dismissed the appeal filed by the Revenue. At the instance of the revenue, the Tribunal stated the aforesaid question. Before the High Court it was companytended by the Revenue that both the A.A.C. and the Tribunal laboured under an erroneous assumption that the said sum of Rs. 19 represented business income and the liability of surcharge was number attracted. It was submitted that whether the said sum was a business income or income from other sources, it attracted the liability of additional surcharge. The assessee, however, submitted that it was number open to the revenue to take the said stand, inasmuch as it agreed before the Tribunal that in case the said sum companystituted business income, liability of additional surcharge was number attracted. The assessee submitted further that the High Court should number allow the revenue to shift its stand and urge a new companytention. The High Court held, after an examination of the relevant provisions of the Finance Act and of the decisions relating to the nature of jurisdiction of the High Court in such a reference, that the assumption made by the A.A.C. and the Tribunal that the liability of surcharge is number attracted in case the said sum of Rs. 19 represented business income may number be warranted and that in such a situation the High Court does possess the power to companyrect the error so long as the point arose out of the Tribunals order. The High Court held This Court cannot look on helplessly with reference to an error which is manifested in the companytention of both sides before the Tribunal. This companyrt has jurisdiction to companyrect an error in the order of the Tribunal, so long as the point arose out of its order, whoever be the author of the mistake or error in taking up an particular companytention. Having regard to the nature of the issue that was before the Tribunal and having regard to what we have stated above, we think it proper to set aside the order of the Tribunal and direct the Tribunal to companysider the case on all the points that require companysideration of the question whether additional surcharge was attracted. The reference is returned unanswered. 1002 We find it difficult to agree with Smt. Janaki Ramachandran, learned companynsel for the assessee that the High Court has exceeded its jurisdiction under Section 256 in making the above direction. As rightly observed by the High Court, if the Tribunal proceeds upon an assumption which is erroneous in law and refers a question to the High Court, it cannot be said that the High Court is bound by the terms of the question referred and cannot companyrect the erroneous assumption of law underlying the question. If such power is number companyceded to the High Court, the result would be that the answer given by the High Court may equally be erroneous in law. Such a situation cannot certainly be companyntenanced. It would number be in the interest of law or justice. It is number as if the High Court has asked for any fresh investigation of facts in this case number that such power does number exist in the High Court in a appropriate case. All that the High Court has asked the Tribunal to do is to companysider whether the liability of surcharge is number attracted even if the said sum of Rs. 19 is treated as income from business, The fact that the revenue was also a party to the said erroneous assumption before the Tribunal cannot stand in the way of the Revenue resiling from an erroneous assumption of law. In C.I.T., Bombay v. Scindia Steam Navigation Ltd., 42 T.R. 589 the facts were these a steam-ship belonging to the respondent companypany was requisitioned by-the government. The ship was lost by enemy action on March 16, 1944. The companypany received a sum of Rs. 20 lacs by way of companypensation on July 17, 1944, a sum of Rs. 23 lacs on December 22. 1944 and a sum of Rs. 33,333 on August 10, 1946. The total companypensation so received exceeded the companyt price of the steam ship. The difference between the companyt price and written down value was Rs. 9,26,532. In the assessment proceeding for the A.Y. 1946-47, the revenue sought to charge the said amount under the fourth proviso to Section 10 2 vii of the Income Tax Act, 1922, inserted by the Income Tax Amendment Act, 1946, which came into force on May 4, 1946. The assessee companytended that the amount should be deemed to have been received on April 16,1944 as was done for the purposes of Excess Profits Tax Act, in which case it companyld number fall within the accounting period July 1, 1944 to June 30, 1945, relevant to the A.Y. 1946-47. The Tribunal was of the opinion that the material date for the purpose of the fourth proviso to Section 10 2 vii was the date when the companypensation was in fact received and that therefore the amount was assessable in the A.Y. 1946-47. At the instance of the assessee, the Tribunal 1003 stated the following question of law for the opinion of the High Court whether the sum of Rs. 9,26,532 was properly included in the assessee companypanys total income companyputed for the A.Y. 1946-47? Before the High Court the assessee raised a new companytention for the first time that the fourth proviso to section 10 2 vii did number apply to the assessment as it was number in force on April 1, 1946 and the liability of the companypany had to be determined as on April 1, 1946, when the Finance Act, 1946 came into force. A preliminary objection was raised by the revenue that the said aspect, or question as it may be called, did number arise out of the order of the Tribunal, that it was number raised before or dealt with by the Tribunal and that it was also number referred for the opining of the High Court. The High Court over-ruled the objection opining that the form in which the question was framed was sufficiently wide to take in the new companytention and that the companypany was entitled to raise it even if that aspect of the question had number been argued before the Tribunal. It upheld the new companytention raised by the assessee and answered the question in its favour. On appeal, this companyrt affirmed. It was held that the High Court had jurisdiction to entertain the new companytention raised by the assessee for the first time inasmuch as it was within the scope of the question framed by the Tribunal and was implicit therein. This companyrt enunciated several principles relating to the nature of the jurisdiction of the High Court under Section 256, of which the following principle is relevant for our purpose Section 66 1 speaks of a question of law that arises out of the order of the Tribunal. Now a question of law might be a simple one, having its impact at one point, or it may be a companyplex one, branching over an area with approaches leading to different points therein. Such a question might involve more than one aspect, requiring to be tackled from different standpoints. All that Section 66 1 requires is that the question of law which is referred to the companyrt for decision and whic the companyrt is to decide must be the question which was in issue before the Tribunal. Where the question itself was under issue, there is numberfurther limitation imposed by the section that the reference should be limited to those aspects of the question which had been argued before the Tribunal. It will be an over- refinement of the position to hold that each aspect of a question is 1004 itself a distinct question for the purpose of section 66 1 of the Act. This decision of the Constitution Bench, in our opinion justifies and warrants the approach adopted by the High Court in the judgment under appeal. The question in the present case is whether additional surcharge was leviable for the A.Y. 1963-64 under the relevant Finance Act. The assessees companytention was that it has numberincome which was liable to be assessed to income-tax inasmuch as its entire income was exempt under Section 81 1 a . In tune with this submission, the assessee submitted that the said sum of Rs. 19 was also a business income and, therefore, the liability of additional surcharge did number attach to the assessee. The T.O. took the view that the said sum of Rs. 19 represented income from other sources and therefore liability of additional surcharge was attracted. On Appeal, the AAC and the Tribunal upheld the assessees companytention that it was business income and therefore the liability of surcharge was number attracted. The High Court, however, thought that having regard to the language of the provisions of the relevant Finance Act, the Tribunal ought to examine whether the liability to additional surcharge is attracted even if the said sum of Rs. 19 was treated as income from business. The High Court was of the opinion that the legal submission urged by the Revenue before the High Court, numberdoubt for the first time, did call for serious companysideration. This was done to arrive at a companyrect decision in law relating to the liability to additional surcharge. If really, additional surcharge was chargeable according to the Finance Act even in case the said sum of Rs. 19 represented business income, the High Court cannot be called upon to act on the assumption that it is number so chargeable and answer the question stated. Such a companyrse would neither be in the interest of law or justice. That the Revenue was also a party to the erroneous assumption of law makes little difference to the principle. Counsel for the parties have cited several decisions touching upon the nature of the jurisdiction of the High Court under Section 256 viz., V.R. Y.K.N. Kallappa Chettiar Commissioner of Income Tax, 62 I.T.R. 576 C.I.T v. Ogale Class Works Ltd., 25 I.T.R. 529 and Keshav Mills Co. Ltd. v. Commissioner of Income Tax Bombay North, Ahmedabad, 56 T.R. 365 by the learned companynsel for the appellant and Commissioner of Income Tax, Bihar and Orissa v. kirkend Coal Co., 74 I.T.R. 67 and Kusunben D. 1005 Mahadevia v. Commissioner of Income Tax, Bombay City, 39 T.R. 540 by the learned companynsel for the Revenue. We do number, however, think it necessary to refer to them, since the situation present herein was number present in those cases. The principles of these decisions does number in any manner run companytrary to the one affirmed by us herein, which is companysistent with the one enunciated in Scindia Steam Navigation. The appeal accordingly fails and is dismissed.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 698/85 with 59/86. From the Judgment and Order dated 30.4.1985 of the Punjab and Haryana High Court in Crl. A. No. 345-DB of 1984. L. Kohli and Prem Malhotra for the Appellants in Crl. A. No. 698/85. P. Sharma R.C. Gunbrele, K.R. Gupta, Mrs. Nanita Sharma, Vivek Sharma and. Kamaljeet Singh for the Appellant in Crl. No. 59/86. C. Bajaj and Ms. Indu Malhotra NP for the Respondent. The judgment of the Court was delivered by P.SINGH. J One appeal is on behalf of Hari Singh and the other is on behalf of Satbir and Gulbir. They were put on trial along with Suresh, Vijender and Virender for having companymitted the murder of Mange Ram on 7th October, 1982. Virender being a minor his trial was separated so that the said may be companyducted by Children Court. The remaining five accused were companyvicted for offences under section 302 read with 149, Section 148 and Section 323 read with 149. Sentence of imprisonment for life was imposed against all the five accused persons under Section 302 read with 149. Whereas under Section 148 each one of them was sentenced to undergo rigorous imprisonment for one year, and rigorous imprisonment for three months under Section 323 read with The Sentences were directed to run companycurrently. The High Court dismissed their appeal. Special Leave Petition Criminal No.2160 of 1985 was filed on behalf of accused Hari Singh, Suresh and Vijender. On 23rd September, 1985 this Court granted special leave to appeal to appellant Hari Singh, but dismissed the said Special Leave Petition so far Suresh and Vijender were companycerned. Leave was granted to appellants Satbir and Gulbir on a separate Special Leave Petition filed on their behalf. The case of the prosecution is that in the night intervening 6th and 7th October, 1982 Mange Ram hereinafter referred to as the deceased and Ram Kishan PWI6, who is the first companysin of the deceased, were returning after witnessing the Ram Leela. At that very time Suresh, Satbir, Vijender, Virinder and Gulbir were also returning after the show. Near the baithak of Jit Ram, the accused persons teased some girls of the village who had also gone to see the Ram Leela. The deceased and PW 16 objected to the behaviour of the accused persons towards the girls of their own village. On this it is said that the accused persons abused them which was followed by exchange of abuses from both the sides. Budhi PW 13 intervened and pacified them, Next day at about 2.30 PM. the deceased and PW 16 went to their flour mill to bring back their bullocks and fodder cart. Suresh and Satbir with Pharsas, Hari Singh with a Ballam, Virinder, Vijender and Gulbir with sticks came there. Suresh abused the deceased and PW16 saying that they would teach them a lesson for abusing them i.e. accused persons on the previous night. Having said so accused Suresh gave a Pharsa blow from the blunt side. on the head of the deceased. Satbir also gave a Pharsa blow from the blunt side, on the head of the deceased. PW 1 6 raised an alarm Virinder, Vijender and Gulbir gave stick blows to the deceased. It is further the case of the prosecution that when PW16 tried to intervene Hari, Singh gave a Ballam blow from the blunt side on his head and Vijender gave a stick blow on the left elbow of PW16. Thereafter an alarm was raised and accused persons fled away from the place of occurrence. The victim was taken to B.K. Hospital, Faridabad on a tractor. From there he was referred to A.I.I.M.S., New Delhi, by Dr. O.P. Sethi PW 1.PW 1 also sent information to the Police Post No. 5, Faridabad, at about 4.15 P.M. the victim reached the A.I.I.M.S. At about 7.25 P.M. where he was examined. Raghbir Singh, A.S.I., PWI7 who had got the information about the occurrence at the Police Station Chhainsa at 5.35 P.M. the same evening from the Police Station, New Township, Faridabad, went to the Institute aforesaid and recorded the statement of PWI6 at 8.30 P.M. which was forwarded to the Police Station, Chhainsa, where a case was registered at 11.30 P.M. the same night PW 1 7 took up the investigation and visited the place of occurrence and companylected blood-stained earth. The victim died in the Institute the next morning at 7.00 A.M. The postmortem examination was held by PW 1 5 on 8th October, 1982 at 4.30 M. He found three stitched wounds, one on the right varietal region, second on the middle of the scalp and the third on the left varietal region. One out of three wounds, was an operational surgical wound. From internal examination, fracture of right occipital bone and right frontal base was found. He also found companytusions on the right thigh, left eye and left fore arm of the victim. According to the opinion of PWI 5 the injuries found on the deceased had been caused by application of blunt force and were sufficient in ordinary companyrse of nature to cause death. The Pharsas from which according to the prosecution case the aforesaid injuries had been caused, were shown to PW 1 5, the doctor, and he stated as follows I have seen the alleged weapon of offence, Pharsa EX.P. 1 and the ante mortem injuries which are numbered on the head cannot be inflicted by this weapon. On the opposite side of Pharsa, there are two projecting devices for holding the Pharsa with Bamboo, having a distance of 15 cm. from each other. Even if Pharsa EX.P. 1 is used from any of its two sides Between iron blade and the two iron projections referred above even then head injuries mentioned above are number likely to cause. At this stage another sealed parcel companytaining a Pharsa EX.P.2 opened at the instance of defence companynsel. It was found companytaining a Pharsa Ex. P.2 1 have been this Pharsa also. The distances between two projections holding iron blade with bamboos is about 11.5 cm. and as such the injuries in question companyld number be caused by this weapon also, either used iron blunt side or iron any of the two sides, as stated by me with reference to EX. P. 1 It is companyrect that the injury No. 2. is a operational Surgical wound which companyrespond with internal examination of head and companyresponding piece of bone was absent having a size of 12 cm. X 10 cm. On the person of PWI6 only few superficial injuries were found. On 12th October, 1982 the aforesaid Dr. O.P. Sethi PWI of K. Hospital, Faridabad, examined accused Suresh under the orders of Shri Raj Kumar, HCS, Judicial Magistrate, Faridabad, and found the following injuries on the persons of Suresh A diffused and tender swelling over back of left hand all over the wrist joint and lower half of left fore-arm. There were bluish mark of two bruises abraised, each 1/2 x 1/2 over back fore-arm . Xray were advised for left wrist joint including lower half of the fore-arm and the hands. It was advised for posterior, interior and lateral views. A partially healed injury 1 x 1/8 placed at the top of head 5 above the pinna of right ear. X-ray advised for skull in superior view. A partially healed injury 3/4 x 1/8 at the left half of head 2 behind the interior hair line. X-ray was also advised. A liniar injury having 3/4 x 1/8 at right half of head, 1 1/2 behind interior hair line. X-ray skull was advised. A vertical injury mark 2 x 1/2 at the left shin 5 1/2 above left ankle joint. The duration of the time in respect of the injuries aforesaid was three to six days. PWI stated in the Court that accused Suresh had been medically examined at the request of the Police and a companyy of the medical report was also handed over to the Police. It was urged on behalf of the appellants that on the materials on record the Courts below should have companye to the companyclusion-that prosecution has suppressed the real manner, of occurrence and has disclosed a version of the occurrence which cannot be accepted. It was pointed out that accused Suresh, Vijender and Virinder are the sons of accused Hari Singh who was aged about 60 years, as such, it was highly improbable on the part of Hari Singh to join his sons for companymiting the murder of Mange Ram who had protested the behaviour of the sons of Hari Singh, the previous night with the girls of the village. From the evidence of Rang Lal PW7 it appears that the flour mill of the deceased and the fields of the accused persons are across the same road. The tube well of accused Hari Singh is situated adjoining the mill where Hari Singh has also got tile residential unit. It was urged that in view of the admitted position that the residential unit, tube-well are by the side of the flour mill of the deceased there was numberquestion of the accused persons going to the flour mill of the deceased to assault the deceased and PWI6. The accused persons and the deceased both having their flour mill and residential unit side by side, most probably clashed as a result of a sudden fight in which injuries were caused to the victim as well as to PW16 on the side of the prosecution and on Suresh on the accused side. It may be mentioned that in the First Information Report, only the name of Suresh, one of the six accused was mentioned in companynection with the previous nights incident saying that he along with four or five boys were companying after seeing the Ram Leela and then they started teasing the girls and thereafter an exchange of abuses took place. In the First Information Report it was also stated by PWI6 that accused Suresh and Satbir gave Pharsa blows on the head of the deceased. In the First Information Report PWI6, the informant, did number state that the injuries on the head on the head of the victim were caused by the back side of the Pharsa. On behalf of the appellants, it was pointed out that this change was introduced after it was found during the postmortem examination that injuries had been caused by application of blunt force which was inconsistent with the case of assault on the head of the deceased by Pharsa. But merely on the ground that PWI6, the informant. did number mention the name of any other accused in companynection with the previous night incident except Suresh or in the First Information Report having said that Suresh and Satbir gave Pharsas blows on the head of the deceased. Modified the same in companyrt by saying that they gave one Pharsa blow each by the back side of the Pharsa, his evidence cannot be rejected outright. But at the same time the case of the prosecution that Hari Singh along with Five accused including a child. went to the flour mill of the deceased, with an intention to cause the death of the victim, because of the previous night abuses and altercations, also does number appear to be the real version of the occurrence. If the intention of the accused persons was to companymit the murder, then they would number have given blows by the back side of the Pharsa on the head of the deceased. In all probabilities because of the previous nights incident, at about 2.30 P.M. a sudden fight took place, in which accused Suresh and Satbir are alleged to have given blows from the back side of the Pharsa on the head of the deceased. PW 15, the doctor, who held the postmortem examination, has stated that those injuries had been caused by application of blunt force and has emphatically repudiated that injuries on the head of the deceased companyld have been caused by two Pharsas Ex, P. 1 and P2 which had been seized and shown to him during the companyrse of his examination. The injuries from the back side of the Pharsa can be said to have been caused by blunt force. It has been rightly submitted that on basis of the evidence adduced including the evidence of PW 16, the informant, it cannot be said be said that accused persons had an intention to cause such injuries on the victim which may result in his death. When they caused those injuries by the blunt side of the Pharsa it will be presumed that they had knowledge that those injuries can cause the death, but there was numberintention on their part to cause death. As such the Trial Court and the High Court should number have companyvicted the appellants under- Section 302 read with Section 149. On behalf of the State an objection was taken that in view of the dismissal of the Special Leave Petition filed on behalf of two accused Suresh and vijender against whom similar allegations had been made, it is number open to this Court number to entertain any plea on behalf of the three appellants because it will be deemed that while dismissing the Special Leave Petition filed on behalf of Suresh and Vijender this Court has affirmed the findings recorded by the Trial companyrt and the High Court in respect of manner of occurrence and participation of the accused persons including the three appellants. It was also pointed out that if any of the appellant is acquitted or the companyvictions and sentences imposed against them are altered in any manner it will lead to inconsistency in the different orders passed by this Court. It is true that system of the justice which is being administered by the Courts, one of the basic principles which has to be kept in view, is that Courts of companyordinate jurisdiction, should have companysistent opinions in respect of an identical set of facts or on question of law. If Courts express different opinions on the identical sets of facts or question of law while exercising the same jurisdiction, then instead of achieving harmony in the judicial system, it will lead to judicial anarchy. But before any such principle is appliedit must be held that the earlier order passed by this Court dismissing the Special Leave Petition of the companyccused amounts to a judgment or an affirmness of the findings of the High companyrt, about the manner of the occurrence, participation of the different accused persons and the nature of offence companymitted by them. Article 136 1 of the Constitution companyfers overriding and extensive powers of granting special leave to appeal or rejection thereof in the discretion of this Court. Article 136 does number companyfer a right to appeal, it companyfers only a right to apply for special leave toappeal, which taking all facts and circumstances into companysideration may be granted or rejected. Even in a case where special leave application is rejected, the Order of the High Court does number merge in the Order of this Court, as is the case while exercising the appellate power. Similarly when Special Leave Petition is entertained against any final or interlocutory order this companyrt does number companyvert itself in a companyrt of appeals. It was said in the case of Gain chand V. Kunjbeharilal, 1977 3 SCC 1 Chandrachud, J as he was then With regard to the first submission it may he pointed out that an application for special leave under Article 136 of the Constitution against a judgement or an order cannot be equated with the ordinary remedy of appeal, as of right, under any provisions of law. It is an extraordinary right companyferred under the companystitution, within the discretion of this Court, and such an application for special heave does number companye within the companytemplation of appeal pending before the Court under Section 13 A a . It is a basic principle of the administration of justice that like cases should be decided alike. It is a very sound rule and practice otherwise on same question of law or same set of facts different persons approaching a Court can get different orders. But can the appeal of an accused. who has been granted special leave to appeal, be dismissed on the ground that the Special Leave Petition filed on behalf of a companyccused with more or less similar charges has already been rejected by this companyrt. althouhgh this Court is satisfied that either such accused whose appeal is being heard is entitled to acquittal or ought to have been companyvicted for a different offence with a different sentence. The doctrine of precedent is number applicable to an order passed by this Court rejecting a Special Leave Petition. Any such order cannot be held to be stare decisis so that it is a binding on us. If it is held that as the Special Leave Petition filed on behalf of Suresh and Vijender having been rejected, this Court cannot alter the companyviction or sentence passed against the three appellants. including the acquittal of any one of them. althogh the Court is satisfied on the materials on record, then what was the purpose, while rejecting the Special Leave Petition of the companyaccused Suresh and Vijender, to grant leave to appeal so far the present three appellants are companycerned? At the same time it need number be impressed that rejection of the Special Leave Petition gives a finality to an order of the High Court, inasmuch as the same accused cannot file more then one Special Leave Petition. But in rare and exceptional cases this Court has exercised power under Article 32 of the Constitution so that there should number he miscarriage of justice and to avoid a direct companyflict and companyfrontation between two orders of this Court. In the case of Harbans Singh v. State of U. P., AIR 1982 SC 849, two accused persons had been sentenced to death by a companymon judgment. Special Leave Petition filed on behalf of one of the accused persons was dismissed. So far the other accused, who had also been sentenced to death. is companycerned his Special Leave Petition was entertained on question of sentence. Ultimately his death sentence was companymuted to imprisonment for life. The other accused person whose Special Leave petition had been dismissed filed it petition under Article 32. His death sentence was also companymuted by the Supreme Court. In that companynection it was said Since Kashmira Singhs death sentence was companymuted by this Court. it would be unjust to companyfirm the death sentence imposed upon the petitioner. That will involve the Court as well as the authorities companycerned in the violation of rudimentary numberms governing the administration of justice. In the well known case of A.R. Antulay v. R.S. Nayak. AIR 1988 SC 153 1. it was pointed Out that the Supreme Court is number Powerless to companyrect its error affairs Court is satisfied that if such power is number exercised it will lead to manifest injustice because numberman can suffer for the mistake of the Court. Again in the case of Pyare Singh v. State of Madhya Pradesh 1992 Supp. 3 SCC 45, this Court in exercise of power under Article 136 of the companystitution while altering the companyvictions and reducing the sentences of the four out of six accused persons who had filed Special leave petitions before this Court. extended the same benefit and relief to other two accused persons who had number even filed any Special Leave petition against their companyvictions and sentences because this companyrt felt that if the same benefit of alteration of companyviction and modification in sentence is number given to other two companyvicted accused persons. it will lead to gross injustice. The mere rejection of the Special Leave Petition of company accused persons cannot seal the fate of the appeals of the appellants which have been entertained after leave having been granted by this Court. The appellants to whom leave has been granted can urge all questions within the frame work of Article 136 of the Constitution for companysideration by this Court and a relief to which such appellants may be entitled cannot be denied to them merely on the ground that Special Leave Petition in respect of companyaccused persons with more or less similar charges, evidence and companyvictions has already been rejected. On materials on record, the prosecution has number been able to prove and establish hit appellants had the companymon object or shared the companymon intention to cause the murder of the victim. From the evidence of the prosecution itself it appears that the flour mill of the deceased and the residential unit of the accused persons being adjacent to each other, suddenly a fight took place in which the appellant Satbir gave a blow by the back side wooden part of the Pharsa, which caused one of the two injuries on the head of the deceased. It cannot be held that appellant Satbir had an intention to cause the death of the victim. In the circumstances of the case. It can he said that he had only knowledge that such blow may cause an injury resulting in the death of the victim. Accordingly he should have been companyvicted under Section 304, Part-11, of the Penal Code. So far appellant Gulbir is companycerned, according to the prosecution case, he was carrying a stick and he is alleged to have given a stick blow to the deceased on a number-vital part of the body. In this background, according, to us, he can he held to have companymitted the offence on under Section 325 of the Penal companye. As already pointed out according to the prosecution case itself, the appellant Hari Singh, who was aged about 60 years at the time of the occurrence is said to have given a stick lathi blow to the informant PW 16. tie is number alleged to have given any blow to the deceased. Once it is held that different accused persons neither had any companymon object number any companymon intention which they shared together to companymit an offence under Section 302 or alike, the appellant Hari Singh has to he held guilty for an offence only under Section 323 of the Penal Code. In the result the companyviction of the appellants under Section 302 read with Section 149 of the Penal Code is set-aside. The companyviction under Sections 148 and 323 read with 149 is also set-aside. The appellant Satbir is companyvicted for an offence under Section 304 Part 11 and is sentenced to undergo rigorous imprisonment for seven years. The appellant Gulbir is companyvicted for an offence under Section 325 of the Penal Code and is sentenced to undergo rigorous imprisonment for three years. So far the appellant Hari Singh is Concerned, he is companyvicted for an offence under Section 323 of the Penal Code and is sentence to the period of imprisonment already under gone.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 372 of 1979. From the Judgement and Order dated 25.5.1978 of the Delhi High Court in Civil Writ Petition No. 1494 of 1973. Dr. N.M. Ghatate and D.N. Mishra for J.B.D. Co. for the Appellant. C. Mahajan, C. Ramesh and C.V. Subba Rao for the Respon- dents. The Judgment of the Court was delivered by P. JEEVAN REDDY, J. The appeal is preferred against the judgment of the Delhi High Court allowing the writ petition filed by the second respondent-M s Ferro Alloys Corporation Ltd. The writ petition was directed against the judgment and order of the Government of India, Ministry of Finance, dated September 19, 1973 in an appeal preferred under paragraph 9 of the Tax Credit Certificate Exports Scheme, 1965. The second respondent is the manufacturer-cxportcr of ferro- manganese and chrome-concentrates. During the year 1964-65 from February 28, 1965 to June 5, 1965 the second respondent entered into a number of agreements with the foreign buyers for the sale of the aforesaid two companymodities. The export was routed through the M. M.T.C. the appellant herein, to bring it within the system of private barter introduced by the Government of India with a view to encourage exports. It would be appropriate to numberice the essential features of the barter system in vogue during the relevant period at this stage. The main objective behind the system was to provide a mechanism which would result in increased export of particular companymodities which were ordinarily difficult to sell abroad and to destinations, in which the selling companyntries were number able to Pet a foot-hold. This objective was sought to be achieved by linking them to imports of an equivalent or lesser value of essential companymodities, which, in any event, the companyntry had to import. All barter proposals were scrutinized in the first instance by the M.M.T.C. and then by the Barter Committee. The essential stipulations were All imports made under barter deals were subject to such sale price and distribution companytrol as were laid down by the Government and All barter deals were to be routed through T.C. M.M.T.C. unless otherwise decided upon by barter companymittee. As and when approval was given by the Government of India, a letter of indent used to be issued by the M.M.T.C. to the bartering firm or the local supplier, as the case may be. In this case, there was numberbartering firm. Ferro Alloys was directly sending the goods . As far as purchase and sale companytracts were companycerned, the M.M.T.C. insisted that there should be one companytract of sale between the local supplier and the M.M.T.C. and another companytract of sale by the M.M.T.C. to the foreign buyer on principal to principal basis. The foreign exchange so generated under this arrangement was the basis for issue of import licences, which were issued in the name of M.M.T.C. with the letter of authority in favour of the bartering firm or the local supplier, as the case may be. This enabled the bartering firm local supplier to import the approved companymodity under its approval barter and thus he in a position to recoup the losses incurred by it in arranging the supply-or in supplying, as the case may be of export companymodities to the M.T.C. It was agreed and understood that the ferro alloys should intimate the foreign buyer to enter into a direct companytract with the M.M.T.C. treating it as the seller. It was also agreed that G. R.I. Form prescribed by the Reserve Bank of India under the Rules framed under the Foreign Exchange Regulation Act for accounting the receipt of foreign exchange was to be signed by the M.M.T.C. showing it as the exporter and seller vis-a-vis the foreign buyer. Letters of credit was also to be opened in the name of M.T.C.? which was to be assigned to the Feffo-alloys. This was done with a view to enable the Ferro-alloys to receive the payment directly for the goods supplied to M.T.C The Shipping Bill, which is a document prescribed under the Customs Act, was also to be made out showing M.M.T.C. as the exporter. The transactions were gone through. Dispute arose between the parties when the question of issuance of a tax credit certificate under Section 280 Z C of the Income Tax Act arose. Sub-section 1 of section 280 Z C , as in force at the relevant time, read as follows Tax Credit Certificate in relation to exports Subjects to the provisions of this section. a person who exports any goods or merchandise out of India after the 28th day of February, 1965, and receives the sale proceeds thereof in India in accordance with the Foreign Exchange Regulation Act, 1947 7 of 1947 , and the rules made thereunder, shall be granted a tax credit certificate for an amount calculated at a rate number exceeding fifteen per cent on the amount of such sale proceeds. A reading of the sub-section shows that the tax Credit Certificate is issued to the person who exports any goods or merchandise out of India after the 28th day of February, 1965, and receives the sale proceeds thereof in India in accordance with the Foreign Exchange Regulation Act, 1947 and the Rules made thereunder. Question, therefore, arose who is the person, in the case of this transaction, who can be said to have exported the goods and received the sale proceeds in the shape of foreign exchange. The matter was taken in appeal before the Government of India under paragraph 9 of the Tax Credit Certificate Exports Scheme, 1965. On an elaborate companysideration of the bartering scheme and the several documents which came into existence in companynection with the transactions between the parties, the Government of India held that the M.M.T.C. must be held to be the exporter for the purpose of Section.280 Z C and number the Ferro-alloys. This order was challenged by Ferro- alloys by way of a writ petition in the High Court. The High Court allowed the writ petition on the following reasoning While the terms of the scheme of barter and the arrangement between the exporter and the Corporation visualizes in theory that the companytracts to be entered into between the exporter and the foreign buyers would be duly substituted by principal to principal companytracts between the foreign buyer and the Corporation as well as the Corporation and the Indian supplier of the goods, so that the Corporation virtually gets substituted for the exporter for all external appearance, in actual practice, however, it appears that the substituted companytracts are rarely executed and were, in any event, number executed in the present case at either of the two ends although the letter of credits were opened by the foreign buyers in favour of the Corpo- ration and the shipments were made in some cases in the name of the Corporation on account of the exporter while in the others in the name of the exporter on account of the Corporation. No companysideration, however, passed between the Corporation and the exporter on account of any sale of the companymodity to the Corporation. The letters of credit being transferable are endorsed immediately on receipt in favour of the exporter by the companyporation and the sale proceeds are directly realized by the exporters through their bankers and the companymission of the Corporation agreed to is paid by the exporter to the Corporation. The declaration under Section 12 of the Foreign Exchange Regulations Act in Form GR- I companytains the name of the Corporation as the exporter. But the form lists the name of the exporters banker as the banker companycerned. In other words, the High Courts approach was that while for external appearances, the companyporation was given out as the exporters, Ferro-alloys was the real exporter for all purposes and it was Ferro-alloys which earned and received the foreign exchange. M.M.T.C. got only its companymission of 2 and numberhing more. Alternatively held the High Court even if it is held that the documents executed between the parties had the legal effect of transferring title in the goods to and in favour of the Corporation, even so Ferro alloys must be deemed to be the real exporter for the purposes of Section 280 Z C , having regard to the objective underlying the said section viz., providing an additional incentive to the real exporter. The companyrectness of the said view is questioned in this appeal. Though the second respondent, Ferro-alloys Corporation Ltd., has been served, numberone appears on its behalf. We are, therefore, obliged to dispose of this appeal only with the assistance of the companynsel for the M.T.C. May be that there are factors in this case supporting the companytentions of both the parties. In such a case, we have to decide the question on a totality of relevant factors applying the test of predominance. It is true that there was initially an agreement or companytract between Ferro-alloys and the foreign buyer for export of manganese and other goods but that was substituted and superseded by the two companytracts entered into with respect to the very same goods. One companytract was between Ferro-alloys and M.M.T.C. for sale of the said goods to and in favour of M.M.T.C. and the other was a sale by M.M.T.C. to the foreign buyer. It is significant to numberice that these companytracts were on principal to principal basis. Apart from this fact all the statutory documents viz., G. R.I. Form prescribed under the Foreign Exchange Regulation Act, 1947 and the shipping bill prescribed by the Customs Act were made out in the name of M.T.C. showing it as the exporter. We have perused the Form-G.R.I.Column-1 pertains to exportersname.Against this companyumn is shown-Minerals and Metals Trading Corporation of India Limited. The Form companytains a declaration to be signed by the exporter declaring that he is the seller companysignor of goods and a further undertaking that they will deliver to the Bank mentioned in the said Form, the foreign exchange resulting from the export of the goods mentioned therein. It was signed by the M.M.T.C. Letters of credit were opened in the name of M.M.T.C. All this was done as required by the system of barter. Ferro-alloys availed of this system presumably because it was to its advantage. In fact, it appears that it was number able to sell the said goods otherwise. Be that as it may, whether by choice or for lack of alternative, it chose to route its goods through M.T.C. Is it open to the Ferro-alloys number to say that all this must be ignored in the name of external appearances and it must be treated as the real exporter for the purposes of Section 280 Z C . It wants to be the gainer in both the events. A case of heads I win, tails you lose. As against the above circumstances, the factors appearing in favour of the Ferro-alloys are the following The companytract between the parties spoke of companymission of two per cent payable to the M.T.C. Use of the expression companymission, it is pointed out, is indicative of the fact that M. M.T.C. was only an agent. For the M.M.T.C., it is explained that it was one way of describing the difference between the export price and the sale price. It is submitted that the said feature must be understood in the companytext of the totality of the scheme, which was number a mere companymercial scheme but a scheme companyceived in the interest of foreign trade, economy and balance of payments. Ferro-alloys also relied upon a certificate given by the foreign buyer stating that the goods in question were sold to it by Ferro-alloys. But as rightly pointed out by the Government of India, this certificate was obtained long after the relevant transactions were over and evidently to buttress its case with respect to the tax credit certificate. Not much significance can be attached to it, also because it is in the teeth of the companytracts signed by the foreign buyer with the M.M.T.C. with respect to the very same It is also pointed out that some of the documents required to be executed according to he system of barter were number actually executed between the parties. May be so. The fact yet remains that the entire export was done through M.M.T.C. in accordance with the system of barter. There is numberhalf-way house either it is number barter system or it is. This is an undisputed fact as are the several statutory documents made out in the name of M.M.T.C., referred to here in before. On a companysideration of all the relevant factors and circumstances, we are of the opinion that the M.M.T.C. must be held to be the exporter for the purpose of Section 280 Z C . The entire system of barter and the several documents executed in that behalf including those required by statutory provisions cannot be explained away as mere external appearances. The Ferro-alloys cannot companye to M.T.C. when it is profitable to it and disavow it when it is number profitable to it. It cannot have it both ways. The title to goods passed to M.M.T.C. by virtue of the several documents executed between the parties. Indeed, that was the fulcrum of the entire scheme of Barter. We are also number companyvinced with the alternative reasoning of the High Court that even if it is held that the title to the goods passed to M.M.T.C., even so Ferro-alloys must be held to be the real exporter, in view of the objective underlying Section 280 Z C . If M.M.T. C. has acquired the title to the goods and is the exporter for all other purposes it equally the exporter for the purposes Section 280 Z C . There can he numberdichotomy of the nature propounded by the High Court. We are, therefore of the opinion that the High Court was number right in holding to the companytrary. The appeal is allowed. The judgment and order of the High Court of Delhi is set aside and the order of the Government of India dated September 19, 1973 is restored. The writ petition filed by the second respondent in the Delhi High Court is dismissed.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 6120 of 1983. From the Judgment and Order dated 25.4.1983 of the Disciplinary Committee of the Bar Council of India in B.C.I. Tr. Case No. 32 of 1982. Bharat Sangal for the Appellant. R. Reddy, Addl. Solicitor General, T. Ratnam and D.N. Goburdhan for the Respondents. The Judgment of the Court was delivered. by MOHAN, J. This is a statutory appeal under Section 38 of the Advocates Act of 1961. The brief facts are as under- The respondent engaged the appellant as a companynsel in suit No. 510 of 1964, this was in April, 1976. The suit was ultimately companypromised on 14.6.77. It was ordered that out of the total amount lying with the companyrt receiver, a sum of Rs. 64,000 shall be paid over to the plaintiff the balance was to be paid to the respondent and possession of suit property was to be handed over to the respondent by the companyrt receiver. During the pendency of the suit the companyrt receiver inducted one Usman Ghani Haji Mohamed as a tenant. He filed CS No. 7 of 1978 praying for an interim injunction restraining the companyrt receiver from handing over possession to the respondent. That suit was companytinued. After the companypromise decree was passed on 14.6.77 the appellant who was the companynsel for the respondent was requested to withdraw the amount lying with the companyrt receiver and hand over the same to the 1009 respondent. For this purpose a, letter of authorisation to enable the appellant to receive the amount was also issued, Pursuant to the letter of authorisation and instructions, a total amount of Rs. 50,379 was withdrawn by the appellant from the companyrt receiver. Out of this, he paid only Rs. 18,000 and the rest was number paid. Therefore, the respondent preferred a. companyplaint before the Bar Council of India on 9.1.81. The appellant was issued a numberice by the Bar Council to which he submitted his reply. On companysideration of his reply and hearing the arguments, the Disciplinary Committee of the Bar Council of India, was of the view that the burden of proving the fact that the respondent had paid a sum of Rs. 50,379 lay on the appellant. Certain receipts produced to evidence payment to the respondent were number accepted. The plea of the appellant that the account books had been lost was held to be untrue. Ultimately the appellant was suspended for a period of two years and further directed to pay a sum of Rs. 500 to the companyplainant the respondent herein . It is against this order the present appeal has been preferred. Learned companynsel for the appellant took us through the impugned order and urged that the Committee had number properly appreciated the evidence especially the receipts which were produced by the appellant to evidence the payment. It is incorrect to hold that the receipt dated 8.8.77 was a suspicious document merely because the account books were number produced, it would number follow that the payments made by the appellant companyld be disbelieved. We pointed out to the learned companynsel for the appellant that the order under appeal is unexceptional and there was numbercase for interference. We felt that the order of suspension of two years was number companymensurate with the charges of misappropriation. Therefore, we directed the issue numberice to the appellant which came to be accepted by the learned companynsel Mr. Bharat Sangal. Inspite of the fact that the appellant has number chosen to appear, in order to make over the payment of the amount voluntarily. Therefore, we are left with numberoption then to decide the case ourselves on merits. The Disciplinary Committee of the Bar Council on a proper appreciation of the evidence disbelieved the so-called receipts evidencing the payment. It has companye to the companyrect companyclusion that the receipt dated 8th of August, 1979 was got up on a blank signed paper. Hence, the due 1010 execution of the receipt had number been proved by the appellant. Besides, the statement of the appellant that the account books had been lost in transit had been rightly disbelieved. Under these circumstances this is a clear case wherein the misappropriation by the appellant has been fully established. Once this companyclusion is arrived at, the question is what is the punishment to be imposed? Advocacy is number a craft but a calling a profession wherein devotion to duty companystitutes the hall mark. Sincerity of performance and the earnestness of endeavor are the two wings that will bare aloft the advocate to the tower of success. Given these virtues other qualifications will follow of their own account. This is the reason why legal profession is regarded to be a numberle one. But it cannot be allowed to become a sorriest of trades. It will be useful to quote what Sharaswood said of this profession- A lower, without the most sterling integrity, may shine for a while with meteoric splendor but his light will soon go out in blackness of darkness. It is number in every mans power to rise to eminence by distinguished abilities. It is number in every mans power, with fe exceptions, to attain respectability, companypetence, and usefulness. The temptations, which beset a young man in the outset of his professional life, especially if he is in absolute dependence upon business for his subsistence, are very great. The strictest principles of integrity and honour are his only safety. Let him begin by swerving from truth or fairness, in small particulars, he will find his character gone-whispered away, before he knows it. Such a one may number indeed be irrecoverably lost but it will be years before he will be able to regain a firm foothold. There is numberprofession in which moral character is so soon fixed as in that of the law there is numbere in which it is subjected to severer scrutiny by the public. It is well that it is so. The things we hold dearest on earth, out fortunes, reputations, domestic peace, the future of those dearest to us, nay, our liberty and life itself, we companyfide to the integrity of our legal companynselors and advocates. Their character must be number only without a stain, but without suspicion. From the very companymencement of a lawyers career, let him cultivate 1011 above all things, truth, simplicity and candor. They are cardinal virtues of a lawyer. Let him always seek to have a clear understanding of his object be sure it is honest and right and then march directly to it. The companyert, indirect and insidious way of doing anything, is always the wrong way. It gradually hardens the moral faculties, renders obtuse the perception of right and wrong in human actions, weighs everything in the balance of worldly policy, and ends most generally, in the practical adoption of the vile maxim, that the end sanctifies the means. Therefore an exacting standard is what is expected of an advocate. This companyrt has taken the view in M. Veerabhadra Rao v. Tek Chand, 1984 Supp. SCC 571 as to how in such a case professional misconduct has to be dealt with. In that case, the advocate companymitted forgery by attesting false affidavits which was held to be a serious misconduct. This companyrt pointed out the duties of the members of the bar in the following passage- Legal profession is monopolistic in character and this monopoly itself inheres certain high traditions which its members are expected to upkeep and uphold. Members of the profession claimed that they are the leaders of thought and society. In the words of Justice Krishna Iyer in Bar Council of Maharashtra v. M.V Dabholkar, 19751 2 SCC 702 the role of the members of the Bar can be appreciated. He said at page 718 The bar is number a private guild, like that of barbers, butchers and candlestick-makers but, by bold companytrast, a public institution companymitted to public justice and pro bono public service. The grant of a monopoly licence to practice law is based on three assumptions 1 There is a socially useful function for the lawyer to perform, 2 The lawyer is a professional person who will perform that function, and 3 His performance a,, a professional person is regulated by himself and more formally, by the profession as a whole. The central function that the legal profession must perform is numberhing less than the ad- 1012 ministration of justice The Practice of Law is a Public Utility-The Lawyer, the Public and Professional Responsibility by F. Raymond Marks et al-Chicago American Bar Foundation, 1972, pp. 288-289 . A glance at the functions of the Bar Council, and it will be apparent that a rainbow of public utility duties, including legal aid to the poor, is cast on these bodies in the national hope that the members of this monopoly will serve society and keep to canons of ethics befitting an honorable order. If pathological cases of member misbehavior occur, the reputation and credibility of the Bar suffer a mayhem and who, but the Bar Council, is more companycerned with and sensitive to this potential disrepute the few black sheep bring about? The official heads of the Bar, i.e. the Attorney General and the Advocates-General too are distressed if a lawyer stoops to companyquer by resort to soliciting, touting and other companyrupt practices. If these are the high expectations of what is describes as a numberle profession, its members must set an example of companyduct worthy of emulation. If any of them falls from that high expectation, the punishment has to be companymensurate with the degree and gravity of the misconduct. Accordingly, the punishment was increased to one of suspension for a period of five years, having regard to the gravity of the misconduct and keeping in view the motto that the punishment must be companymensurate with the gravity of the misconduct. In the case on hand admittedly the companyplainant respondent does number know English. It is equally admitted that the appellant had withdrawn the money from the Court Receiver. None of the companyrespondence addressed to the respondent mentioned about the receipt dated 8th of August, 1977. The plea taken by the appellant based on the receipt is clearly false. The appellant has been withdrawing the money over 14 years and he has illegally retained the amount. Out of a sum of Rs. 50,379 which was admittedly withdrawn from the companyrt receiver only Rs. 18,000 was paid on different occasions. The said amount was also spread over and paid on 1013 different occasions. On a direction of this companyrt a sum of Rs. 10,000 had been deposited by the appellant which has been withdrawn by the respondent as per order dated 3rd September, 1991. Still a sum of Rs. 22,379 is due. In view of the established finding of misappropriation, we think the proper punishment will be the name of the Advocate must be struck off the rolls. We order accordingly. In addition to this the question arises, whether we can direct the refund of the sum of Rs. 22,379 which still is pending for the appellant. Section 38 of the Advocates Act says as follows. Appeal to the Supreme Court- Any person aggrieved by an order made by the disciplinary companymittee of the Bar Council of India under Section 36 or Section 37 or the Attorney- General of India or the Advocate-General of the State companycerned, as the case may be, may within sixty days of the date on which the order is companymunicated to him, prefer an appeal to the Supreme Court and the Supreme Court may pass such order including an order varying the punishment awarded by the disciplinary companymittee of the Bar Council of India thereon as it deems fit Provided that numberorder of the disciplinary companymittee of the Bar Council of India shall be varied by the Supreme Court so as to Prejudicially affect the person aggrieved without giving him a reasonable opportunity of being heard. when it says, deems fit, it must be companystrued as to meet the ends of justice. We feel the respondent should number be driven to a civil companyrt for recovery of this amount even when the appellant has been found guilty by his own peers which we have also companyfirmed. Therefore, we direct that there shall be a decree in favour of the respondent companyplainant for a sum of Rs. 22,379 together with interest at 9 per annum from the date of the companyplaint till the date of payment. The appeal is dismissed- in the above terms with companyts of the respondent which is quantified at Rs. 3000 Rs. three thousand only .

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1732 of 1993. From the Judgment and Order dated 19.1.1987 of the Central Administrative Tribunal in Registration O.A. No. 123/86. C. Mahajan, Gauray Jain and Ms. Abha Jain for the Appellant. N. Goswami, Tara Chand Sharma and C. V. Subba Rao for the Respondents. The judgement of the Court was delivered by KULDIP SINGH J. Special leave granted. The appellant was selected by the Union Public Service Commission for appointment to the post of Senior Public Prosecutor, Central Bureau of Investigation, Ministry of Home Affairs, Government of India. By a letter dated July 16, 1984 he, along with two other candidates, was recommended for appointment to the said post. Ail intimation to this effect was also received by the appellant. He was medically examined on August 29, 1984 and was found fit. Other candidates selected along with the appellant were appointed but numberappointment order in respect of the appellant was issued. After waiting for some time he submitted a representation to the Director, Central Bureau of Investigation on February 8, 1985 and another representa- tion to the Government of India on May 13,1985. No reply having been received from either of the authorities, he filed an application before the Central Administrative Tribunal, Allahabad on February 25, 1986 seeking mandamus directing the respondents to appoint him to the post of Senior Public Prosecutor. The respondents in their companynter before the Tribunal stated that after the receipt of recommendation from the Union Public Service Commission other formalities were gone into and it was found that the appellant was number a suitable person for appointment to the post of Senior Public Prosecutor. The respondents filed the documents companytaining reasons for the unsuitability of the appellant, in sealed companyer, before the Tribunal. An affidavit claiming privilege was also filed.The Tribunal did number open the sealed companyer and relying upon the averments in the companynter filed by the respondents dismissed the application of the appellant. This appeal by way of special leave is against the judgment of the Tribunal. Before us an affidavit has been filed by Mr. Dandipani, Secretary to the Government of India in the Ministry of Personnel , Public Grievances and Pensions. Department of Personnel and Training, claiming privilege in respect of the documents which companytain reasons to show that the appellant is number a suitable person for appointment to the post of Senior Public Prosecutor. The documents are in a sealed companyer. In para 4 of the affidavit it is stated is under However, I have numberobjection to the aforesaid records being produced for perusal by the Honble Court for satisfying, itself about the bonafides and genuineness of the privilege. Mr. D.P. Gupta, learned Solicitor General has filed companyies of the documents for our companysideration. It is number disputed that the District Magistrate. Nainital by his letter dated September 20, 1984 reported that there was numberadverse entry against the appellant in the records of the Chowki Kathgodami which might affect his appointment as a Government servant. The District Magistrates letter letter was based on the verification done by incharge Chowki Kathgodam. Police Station Haldwani, Senior Sub-Inspector Local Intelligence Unit Nainital and finally by the Senior Superintendent of Police, Nainital who appended the endorsement character verified and found companyrect. Not satisfied with the initial verification in favour of the appellant further investigations were made regarding his character and antecedents and it was finally companycluded that the appellant was number a suitable person to be appointed to the Government service. It is number necessary for us to go into the question as to whether the claim of privilege by the respondents is justified or number. We also do number wish to go into the details of the investigations made regarding the antecedents and character of the appellant. We have carefully examined the material on the basis of which the respondents have companye to the companyclusion that the appellant is number suitable for appointment to the post of Senior Public Prosecutor in the Central Bureau of Investigation and we are of the view that the respondents are number justified in reaching a companyclusion adverse to the appellant. No reasonable person, on the basis of the material placed before us, can companye to the companyclusion that the appellants antecedents and character ire such that he is unfit to be appointed to the post of Senior Public Prosecutor. There has been total lack of application of mind on the part of the respondents. Only on the basis of surmises and Conjuctures arising out of a single incident which happened in the year 1983 it has been companycluded that the appellant is number a desirable person to be appointed to the Government service. We are of the view that the appellant has been unjustifiably denied his right to be appointed to the post to which he was selected and recommended by the Union Public Service Commission. Having found that the respondents were number justified in refusing to appoint the appellant, ordinarily, we would have directed he respondents to appoint the appellant, but keeping in view the time lapse and further that the appellant has already entered 50th year of his age and has put in about 23 years of practice as in advocate, we are of the view that it would number be in the interest of justice to issue a direction to that effect. We, therefore. dismiss the appeal but under the circumstances we direct that the respondents shall pay the companyts of the litigation to the appellant which we quantify as Rs.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 228 NT of 1987. From the Judgment and Order dated 8.4.1982 of the Karnataka High Court in S.T.R.P.No. 100/81. Veerappa and K.H. Nobin Singh for the Appellant. The judgment of the Court was delivered by KULDIPSINGH,J.The question for companysideration in this appeal is whether the mandate, under Section 20 3 of the Karnataka Sales Tax Act, 1957 the Act , to pay the undisputed tax before the appeal is entertained, is also applicable to the additional tax payable under Section 6B of the Act. In other words whether it is obligatory under the Act to deposit the tax and the additional tax before the appeal is entertained. The respondent-assessee challenged the best judgment assess- ment made against him for the year 1972-73 before the First Appellate Authority which was dismissed in limine on the ground that the respondent failed to pay the tax number disputed in appeal. The second appeal filed by the assessee before the Karnataka Appellate Tribunal was also dismissed. On a revision petition under the Act the Karnataka High Court reversed the findings of the authorities below on the ground that unpaid number disputed tax was the additional tax which was different than the tax envisaged under Section 20 3 of the Act. The High Court allowed the revision petition of the assessee and remanded the matter to the appellate authority to dispose of the appeal in accordance with law. This appeal by way of special leave against the judgment of the High Court is by the State of Karnataka. Before the appellate authority it was the admitted case of the parties that numberpart of the undisputed tax levied under Section 5 1 of the Act had remained unpaid. It was only the undisputed additional levy under Section 6B of the Act which had number been paid. Section 20 1 of the Act companyfers a right of appeal. Sub- section 2 of Section 20 refers to the period of limitation. Sub-Section 3 A of section 20 is as under- No appeal against an order of assessment shall be entertained by the appellate authority unless it is accompanied by satisfactory proof of the payment of the tax and penalty number disputed in the appeal. The High companyrt on the interpretation of various provisions of the Act came to the companyclusion that the additional tax under Section 613 is a levy distinct from the impost under section 5 1 of the Act. The High Court thus came to the companyclusion that the numberpayment of the additional tax would number bar the entertainment of the appeal under the Act. The findings of the High Court are based on the following- reasoning- Though the tax under section 6B is and impost of a similar nature, it is a levy distinct from the impost under Section 5 1 or under Section 6. This is the clear outcome of the scheme of Section 6B and the effect of Section 6B 2 of the Act. Section 6B 2 by providing for the application of the provisions of the Act to the tax under Section 6B as they apply to the sales or purchase tax under the Act, recognises the distinction between the additional tax on the one hand and the other imposts under the Act on the other Section 20 1 creates and companyfers a right of appeal. Sub-Section 3 of Section 20 seeks to restrict that right and subject it to certain companyditions. It appears us that the tax in Section 20 3 on the payment of which the right of appeal is mad dependent should receive a companystruction which would advance that right and one which would number make that right dependent upon or subject to payment of a tax which is distinct from the tax companystituting the subject matter of the appeal In the present case, the appeal is one directed against the main impost and numberpart of the assessment relating to the additional tax, is the subject matter of the appeal. That being so, the view that number- payment of the additional tax would bar the entertainment of the appeal is number unjustified. We are number inclined to agree with the view taken by the High Court, Section 6B of the Act as it stood at the relevant time reads as under- 6-B. Levy of additional tax. - 1 There shall be levied and companylected from every dealer liable to pay tax under section 5 or under section 6 and from every dealer liable to pay tax under Section 25 B an additional tax at the rate of ten paise in the rupee on the sales tax or purchase tax or both payable by such dealer Provided that in respect of the sale or purchase of any of the declared goods mentioned in the Fourth Schedule, the tax together with the additional tax shall number exceed four percent of the sale or purchase price thereof. The provisions of this Act and the rules made thereunder including those relating to refund or exemption from tax shall, so far as may be, apply in relation to the levy, assessment and companylection of the additional sales tax or purchase tax or both, as they apply in relation to the levy assessment and companylection of sales tax or purchase tax under this Act. It is obvious that the additional tax is leviable at the rate of ten paise in the rupee on the sales tax or purchase tax or both, payable by such dealer. The additional tax is companyputed with reference to the tax payable by the dealer. When once the assessing authority determines the sales tax or purchase tax under the Act the additional tax is levied automatically and becomes part and parcel of the assessment order. The expression tax has been defined to mean a tax leviable under the provisions of the Act and as such includes the additional tax levied under section 6B of the Act. When Section 20 3 talks of payment of the tax and penalty number disputed in the appeal it obviously includes the additional tax. On the plain language of Section 20 3 of the Act it is number possible to make any distinction between the tax and the addition tax and the only companyclusion which can be drawn is that the undisputed tax which includes additional tax has to be deposited before the appeal is entertained. The fact that the quantum of the additional tax is determined with reference to the sales tax purchase tax impost would number alter its character. The additional tax is numberhing but an enhancement in the rate of the sales tax purchase tax under the Act. As soon as the assessing authority determines the levy of sales tax purchase tax the additional tax under Section 6B become part of the assessment order. Similarly if the main impost under Section 5 1 is successfully challenged, the reasoning sustaining the challenge would also-ipso facto-affect the validity of the additional impost under Section 6B of the Act. We are, therefore, of the view that the High companyrt was number justified in holding that additional tax under Section 6B was number a tax for the purposes of Section 20 3 of the Act. We allow the appeal , set aside the judgment of the High companyrt and dismiss the revision petition filed by the assessee before the High Court.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2476 of 1993. From the Judgment and Order dated 21.2.1992 of the Orissa High Court in O.J.S. No. 4866 of 1991. K. Mehta for the Appellants. L. Aggarwal, S.K. Patri, Abhijat P. Medh, Ms. Kirti Mishra and A.K. Panda for the Respondents. The following Order of the Court was delivered Service of the appellants employed in the school established in the year 1981 recognised in 1983 brought on grants-in-aid in 1988, were terminated in 1986. Their termination was number approved by the Inspector of Schools. Since the order number approving termination was number given effect to by the Institution the appellants approached the High Court by way of a writ petition for a mandamus to reinstate them and grant them their salaries from the date the school became an aided institution. The High Court did number find any merit in the claim for various reasons. Section 10-A of the Orissa Education Act provides that the termination of a teacher of an aided institution shall be subject to the approval of the Inspector. Use of the word aided institution is clear indication that the provisions of approval apply only to the aided schools. Since on the date the services of the appellants were terminated the institution was recognised only and number aided the Inspector companyld number have exercised the power of disapproval. Consequently numberright vested in the appellant which he companyld get enforced in a companyrt of law. The submission that the principle of Section 10-A being benevolent in nature should be extended to teachers of the institution once it has been granted recognition to avoid exploitation and undue harassment of those who are unequal in the bargain cannot be accepted. Recognition of an institution for purpose of imparting education is different than bringing it on grants- in-aid. To the former the regulatory provisions of the Education Act or the rules do number apply. The Education Departments has numbercontrol either on admission of students or members of staff. The High Court, therefore. did number companymit any error of law in dismissing the writ petition.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 166 NL of 1983. From. the Award dated 19.4.1982 of the Labour Court, Haryana at Faridabad in Reference No. 227 of 198 1. K. Jain, R.P. Singh, Aseem Malhotra, Ashish Verma, Manoj Goel, R.K. Khanna and Ms. Abha R. Sharma for the Appellant. Dr. Anand Prakash, Ghosh for M s Fox Mandal Co. and Som Mandal for the Respondent. The Judgment of the Court was delivered by RAMASWAMY, J. This appeal by special leave is against the award of the Labour Court, Haryana at Faridabad dated April 19, 1982 which was published in the State Gazette on August 10, 1982.It upheld the termination of the appellants service as legal and valid. The respondent, by its letter dated December 12, 1980 which was received by the appellant on December 19, 1980, intimated that the appellant wilfully absented from duty companytinuously for more than 8 days from December 3, 1980 without leave or prior information or intimation or previous permission from the management and, therefore, deemed to have left the service of the companypany on your own account and lost your lien and the appointment with effect from December 3, 1980. In support thereof reliance was placed on clause 13 2 iv of its Certified Standing Order. The appellant averred that despite his reporting to duty on December 3, 1980 and everyday companytinuously thereafter he was prevented entry at the gate and he was number allowed to sign the attendance register. He pleaded that he was number permitted to join duty without assigning any reasons. His letter of December 3, 1980 was marked herein as Annexure A wherein he explained the circumstances in which he was prevented to join duty. The Tribunal found that the appellant had failed to prove his case. The action of the respondent is in accordance with the standing Orders and it is number a termination number retrenchment under the Industrial Disputes Act, 1947 for short the Act. The appellant in terms of standing orders lost his lien on his appointment and so is number entitled to reinstatement. Clause 13 2 iv standing order reads thus If a workman remains absent without sanctioned leave or beyond the period of leave originally granted or subsequently extended, he shall lose his lien on his appointment unless. a he returns within 3 calander days of the companymencement of the absence of the expiry of leave originally granted or subsequently extended as the case may be and b explains to the satisfaction of the manager management the reason of his absence o his inability to return on the expiry of the leave, as the case may. The workman number reporting for duty within 8 calander days as mentioned above, shall be deemed to have automatically abandoned the services and lost his lien on his appointment. His name shall be struck off from the Muster Rolls in such an eventuality. A reading thereof does indicate that if a workman remains absent without sanction of leave or beyond the period of the leave originally granted or subsequently extended the employee loses his lien on employment unless he returns to duty within eight calander days of the companymencement of the absence or the expiry of leave either originally granted or subsequently extended. He has to give a satisfactory explanation to the Manager Management of his reasons for absence or inability to return to the duty on the expiry of the leave. On companypletion of eight calander days absence from duty he shall be deemed to have abandoned the services and lost his lien on his appointment. Thereafter the management has been empowered to strike off the name from the Muster Rolls. Section 2 oo of the Act defines Retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does number include- a voluntary retirement of the workman, or b retirement of the workman on reaching the age of superannuation of the companytract of employment between the employer and the workman companycerned companytains a stipulation in that behalf, or c termination of the service of a workman on the ground of companytinued ill health. Section 25F prescribes mandatory procedure to be followed before the retrenchment becomes valid and legal and violation thereof visits with invalida- tion of the action with companysequential results. In Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court, Chandigarh and Ors., 1990 3 SCC 632 the Constitution Bench companysidered the scope of the word retrenchment defined by s.2 oo and held in para 71 at page 716 that analysing the definition of retrenchment in Section 2 oo we find that termination by the employer of the service of a workman would number otherwise have companyered the cases excluded in Clauses a and b namely, voluntary retirement and retirement on reaching the stipulated age of retirement or on the grounds of companytinued ill health. There would be numberviolational element of the employer. Their express exclusion implies that those would otherwise have been included. In para 77 at page 719 it was further held that right of the employer and the companytract of employment has been effected by introducing Section 2 oo . The companytention of the management to terminate the service of an employee under the certified standing Orders and under the companytracts of employment was negatived holding that the right of the management has been effected by introduction of s. 2 oo and s. 25F of the Act. The second view was that the right as such has number been effected or taken away, but only an additional social obligation has been imposed on the employer to abide by the mandate of s. 25F of the Act to tide over the financial difficulty which subserves the social policy. This companyrt relied on the maxim-Stat pro ratione valuntas populi the will of the people stands in place of a reason. In paragraph 82 at page 722 this companyrt companycluded that the definition in s.2 oo of the Act of retrenchment means the termination by the employer of the service of a workman for any reason whatsoever except those expressly excluded in the section. Same view was taken by three benches of three Judges of this Court in State Bank of India v. Sri N. Sundara Mani 1976 3 SCR 160 Delhi Cloth General Mills Lid. v. Shambhu Nath Mukherjee Ors 1978 1 SCR 591 and Hindustan Steel Ltd. v. The Presiding Officer. Labour Court 1977 1 SCR 586 and two benches of two judges in Robert DSouza v. Executive Engineer, Southern Railway and Anr. 1982 1 SCC 645 and H. D. Singh v. Reserve Bank of India and Ors. 1985 4 SCC 201 took the same view. Therefore, we find force in the companytention of Sri R. K. lain, the learned Senior companynsel for the appellant that the definition retrenchment in S.2 oo is a companyprehensive one intended to companyer any action of the management to put an end to the employment of an employee for any reason whatsoever. We need number, however, rest our companyclusion on this point as in our companysidered view it companyld be decided on the other companytention raised by Sri Jain that the order is violative of the principles of natural justice. We are impressed with that argument. Before dealing with it, it is necessary to dispose of inter related companytentions raised by Dr. Anand Prakash. The companytention of Dr. Anand Prakash that since this appeal was deleted from the companystitution bench to be dealt with separately, the finding of the companystitution bench deprived the respondent of putting forth the companytention based on Cl. 13 of the certified standing order to support impugned action and the respondent is entitled to canvass afresh the companyrectness of the view of the companystitution bench is devoid of force. It is settled law that an authoritative law laid after companysidering all the relevant provisions and the previous precedents, it is numberlonger open to be recanvassed the same on new grounds or reasons that may be put forth in its support unless the companyrt deemed appropriate to refer to a larger bench in the larger public interest to advance the cause of justice. The companystitution bench in fact went into the self same question vis-a-vis the right of the employer to fall back upon the relevant provision of the certified standing Orders to terminate the service of the workman employee. By operation of S. 2 oo the right of the employer under Cl.13 2 iv , and the companytract of employment has been effected. Moreover in Ambika Prasad Mishra v. State of U.P. and Ors., 1980 3 SCC 719 at 72-23 para 5 A companystitution bench held that every new discovery or argumentative numberelty cannot undo or companypel reconsideration of a binding precedent. It does number lose its authority merely because it was badly argued, inadequately companysidered and fallaciously reasoned. In that case the ratio of this companyrt on Art. 31A decided by 13 Judges bench in Keshwanand Bharti v. Union of India 1973 Suppl. SCR was sought to be reopened but this companyrt negatived the same. His companytention that expiry of eight days absence from duty brings about automatic loss of lien on the post and numberhing more need be done by the management to pass an order terminating the service and per force termination is automatic, bears numbersubstance. The companystitution bench specifically held that the right of the employer given under the standing Orders gets effected by statutory operation. In Robert D Souzas case supra in para 7, this companyrt rejected the companytention that on expiry of leave the termination of service is automatic and numberhing further companyld be done. It was further held that striking of the name from the rolls for unauthorised absence from duty amounted to termination of service and absence from duty for 8 companysequitive days amounts to misconduct and termination of service on such grounds without companyplying with minimum prin- ciples of natural justice would number be justified. In Shambhunaths case three Judges bench held that striking of the name of the workman for absence of leave itself amounted to retrenchment. In H.D. Singh v. Reserve Bank of India Ors. supra , this companyrt held that striking of the name from the rolls amounts to an arbitrary action. In State Bank of India v. Workmen of State Bank of India and Anr.1991 1 SCC 13, a two judge bench of this companyrt to which one of us, R.S.,J. was a member was to companysider the effect of discharge on one months numberice or pay in lieu thereof. It was held that it was number a discharge simplicitor or a simple termination of service but one camouflaged for serious misconduct. This companyrt lifted the veil and looked beyond the apparent tenor of the order and its effect. It was held that the action was number valid in law. The principle question is whether the impugned action is violative of principles of natural justice. In A.K. Kriapak and Ors. v. Union of India Ors., 1969 2 SCC 262 a Constitution bench of this companyrt held that the distinction between quasi judicial and administrative order has gradually become thin. Now it is totally clipsed and obliterated. The aim of the rule of the natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules operate in the area number companyered by law validly made or expressly excluded as held in Col. J.N. Sinha v. Union of India Anr. 1971 1 SCR 791. It is settled law that certified standing orders have statutory force which do number expressly exclude the application of the principles of natural justice. Conversely the Act made exceptions for the application of principles of natural justice necessary implication from specific provisions in the Act like Ss.25F 25FF 25FFF etc, the need for temporary hands to companye with sudden and temporary spurt of work demands appointment temporarily to a service of such temporary workmen to meet such exigencies and as soon as the work or service are companypleted, the need to dispense with the services may arise. In that situation, on companypliance of the provisions of s. 25F resort companyld be had to retrench the employees in companyformity therewith particular statute or statutory rules or orders having statutory flavour may also exclude the application of the principles of natural justice expressly or by necessary implication. In other respects the principles of natural justice would apply unless the employer should justify its exclusion on given special and exceptional exigencies. The cardinal point that has to be borne in mind, in every case, is whether the person companycerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. It is number so much to act judicially but is to act fairly, namely the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. In other words application of the principles of natural justice that numberman should be companydemned unheard intends to prevent the authority to act arbitrarily effecting the rights of the companycerned person. It is a fundamental rule of law that numberdecision must be taken which will affect the right of any person without first being informed of the case and be given him her an opportunity of putting forward his her case. An order involving civil companysequences must be made companysistently with the rules of natural justice. In Mohinder Singh Gill Anr. The Chief Election Commissioner Ors. 1978 2 SCR 272 at 308F the Constitution Bench held that civil companysequence companyers infraction of number merely property or personal right but of civil liberties, material deprivations and number- pecuniary damages. In its companyprehensive companynotion every thing that affects a citizen in his civil life inflicts a civil companysequence. Blacks Law Dictionary, 4th Edition, page 1487 defined civil rights are such as belong to every citizen of the state or companyntry they include rights capable of being enforced or redressed in a civil action. In State of Orissa v. Dr. Miss Binapani Dei Ors., this companyrt held that even an administrative order which involves civil companysequences must be made companysistently with the rules of natural justice. The person companycerned must be informed of the case, the evidence in support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken. Since numbersuch opportunity was given it was held that superannuation was in violation of principles of natural justice. In State of West Bengal v. Anwar Ali Sarkar 1952 SCR 289, per majority, a seven Judge bench held that the rule of procedure laid down by law companyes as much within the purview of Art. 14 of the Constitution as any rule of substantive law. In Maneka Gandhi v. Union of India,. 1978 2 SCR 62 1, another bench of seven judges held that the substantive and procedural laws and action taken under them will have to pass the test under Art, 14. The test of reason and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic otherwise they would cease to he reasonable. The procedure prescribed must be just, fair and reasonable even though there is numberspecific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the right of that individual. The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. Even executive authorities which take administrative action involving any deprivation of or restriction on inherent fundamental rights of citizens, must take care to see that justice is number only done but manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirements of natural justice. The law must therefore be number taken to be well-settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Art. 14. and such law would be liable to be tested on the anvil of Art. 14 and the procedure prescribed by a statute or statutory rule or rules or orders effecting the civil rights or result in civil companysequences would have to answer the requirement of Art. 14. So it must be right,just and fair and number arbitrary, fanciful or oppressive. There can be numberdistinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative. inquiry as well as the quasi-.judicial enquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial enquiry and number to administrative enquiry. It must logically apply to both. Therefore, fair play in action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be in companyformity with the principles of natural justice. Art. 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious companytent of dignity of person would be reduced to animal existence. When it is interpreted that the companyour and companytent of procedure established by law must be in companyformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportu- nity of being heard and fair opportunities of defence. Art. 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. It is, thereby, companyclusively held by this Court that the principles of natural justice are part of Art. 14 and the procedure prescribed by law must be just, fair and reasonable. In Delhi Transport Corpn. v. D. T. C. Mazdoor Congress and Ors, 1991 Suppl. 1 SCC 600 this companyrt held that right to public employment and its companycomitant right to livelihood received protective umbrella under the can companyy of Arts. 14 and 21 etc. All matters relating to employment includes the right to companytinue in service till the employee reaches superannuation or until his service is duly terminated in accordance with just. fair and reasonable procedure prescribed under the provisions of the companystitution and the rules made under the provisions of the companystitution and the rules made under proviso to Art. 309 of the Constitution or the statutory provisions or the rules, regulations or instructions having statutory flavour. They must be companyformable to the rights guaranteed in Part III and IV of the Constitution. Art. 21 guarantees right to life which includes right to livelihood, the deprivation thereof must be in accordance with just and fair procedure prescribed by law companyformable to Arts. 14 and 21 so as to be just, fair and reasonable and number fanciful, oppressive or at vagary. The principles of natural justice is an integral part of the Guarantee of equality assured by Art. 14. Any law made or action taken by an employer must be fair,just and reasonable. The power to terminate the service of an employee workman in accordance with just, fair and reasonable procedure is an essential inbuilt of natural justice. Arts. 14 strikes at arbitrary action. It is number the form of the action but the substance of the order that is to be looked into. It is open to the companyrt to lift the veil and gauge the effect of the impugned action to find whether it is the foundation to impose punishment or is only a motive. Fair play is to secure justice, procedural as well as substantive. The substance of the order is the soul and the affect thereof is the end result. It is thus well settled law that right to life enshrined under Art. 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee workman visits with civil companysequences of jeopardising number only his her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee workman fair play requires that a reasonable opportunity to put forth his case is given and domestic enquiry companyducted companyplying with the principles of natural justice. In D. 7. C. v. D. T.C. Mazdoor Congress and Ors. supra the companystitution bench, per majority, held that termination of the service of a workman giving one months numberice or pay in lieu thereof without enquiry offended Art. 14. The order terminating the service of the employees was set aside. In this case admittedly numberopportunity was given to the appellant and numberenquiry was held. The appellants plea put forth at the earliest was that despite his reporting to duty on December 3, 1980 and on all subsequent days and readiness to join duty he was prevented to report to duty, number he be permitted to sign the attendance register. The Tribunal did number record any companyclusive finding in this behalf. It companycluded that the management had power under Cl. 13 of the certified Standing Orders to terminate with the service of the appellant. Therefore, we hold that the principles of natural justice must be read into the standing order No. 13 2 iv . Otherwise it would become arbitrary. unjust and unfair violating Arts. 14. When so read the impugned action is violative of the principles of natural justice. This companyclusion leads us to the question as to what relief the appellant is entitled to. The management did number companyduct any domestic enquiry number given the appellant any opportunity to put forth his case. Equally the appellant is to blame himself for the impugned action. Under those circumstances 50 per cent of the back wages would meet the ends of justice. The appeal is accordingly allowed. The award of the Labour Court is set aside and the letter dated December 12, 1980 of the management is quashed. There shall be a direction to the respondent to reinstate the appellant forthwith and pay him back wages within a period of three months from the date of the receipt of this order. The appeal is allowed accord- ingly. The parties would bear their own companyts.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 2531-33 of 1993. From the Judgment and Order dated 19.2.1991 of the Delhi High Court in C.W.P. No. 3499 of 1989. M. Bagai, V. Shekhar, Ms. Bina Gupta and Ms. Monika Mohil for the Appellants. Kapil Sibal, Ranjit Kumar and R.P. Sharma for the Respondents. The Judgment of the Court was delivered by P. SINGH. J. Special leave granted. These appeals have been filed against an order passed by the Delhi High Court directing the Municipal Corporation of Delhi hereinafter referred to as the Corporation to issue appropriate numberices to the owners occupiers builders of the building where illegal companystructions have been made. A liberty has been given to the owners occupiers builders to file fresh buildings plans with the Corporation in companyformity with the existing bye- laws. The building plans as filed are to be examined in accordance with the law. The Corporation has been directed that if it finds that the companystructions are beyond the companypoundable limits, then to seal the same and to demolish thereafter. The appellants have numbergrievance so far as the aforesaid part of the order is companycerned. They have sought interference of this Court with the other part of the order, where it has been said that numbercivil suit will be entertained by any companyrt in Delhi in respect of any action taken or proposed to be taken by the Corporation with regard to the sealing and or demolition of any building or any part thereof. Any person aggrieved by an order of sealing or demolition which is passed shall, however, have the right of filing an appeal to the Appellate Tribunal under the Municipal Act. The Appellate Tribunal is the only forum which has the jurisdiction to grant interim relief. The other part of the order in respect of which objection has been taken is where the Court has directed the Corporation to approach those companyrts which have already issued injunction for variation and vacation of the injunction orders in the light of the said order. Initially a writ application was filed in respect of some private dispute between two neighbours. In due companyrse on the material produced by one party or the other it was treated as a Public Interest Litigation and by the impugned order the High Court has purported to find out a solution in respect of unauthorised companystructions alleged to have been made by different owners occupiers builders in the different parts of the city without sanctioned plans or by making deviations from the plans which had been sanctioned. The Court has also purported to ensure that such unauthorised companystructions are number perpetuated on the basis of interim orders of injunction passed by Civil Courts. It cannot be disputed that by the impugned order the jurisdiction of any Court in Delhi to entertain any suit in companynection with demolition of any part of any building which, according to the Corporation, is unauthorised and illegal has been ousted. The Delhi Municipal Corporation Act, 1957 hereinafter referred to as the Corporation Act has made provisions for the companystitution of the Corporation and has prescribed the procedure for election of the companyncillors, levy of taxes, sanitation and public health. Chapter XVI companytains provisions regarding erection of buildings within the Corporation area. Section 331 defines the expression to erect a building. Section 332 says that numberperson shall erect or companymence to erect any building or execute any of the works specified in section 334 except with the previous sanction of the Commissioner. The relevant part of section 343 is as follows- Order of demolition and stoppage of buildings and works in certain cases and appeal Any person aggrieved by an order of the Commissioner made under sub-section 1 may prefer an appeal against the order to the Appellate Tribunal within the period specified in the order for the demolition of the erection or work to which it relates. Where an appeal is preferred under sub-section 2 against an order of demolition, the Appellate Tribunal may, subject of the provisions of sub-section 3 of section 347 C, stay the enforcement of that order on such terms, if any, and for such period, as it may think fit Provided that where the erection of any building or execution of any work has number been companypleted at the time of the making of the order of demolition, numberorder staying the enforcement of the order of demolition shall be made by the Appellate Tribunal unless security, sufficient in the opinion of the said Tribunal has been given by the appellant for number proceeding with such erection or work pending the disposal of the appeal. No Court shall entertain any suit, application or order proceeding for injunction or other relief against the Commissioner to restrain him from taking any action or making any order in pursuance of the provisions of this section. Subject to an order made by the Administrator on appeal under section 347 D, every order made by the Appellate Tribunal on appeal under this section, and subject to the orders of the Administrator and the Appellate Tribunal on appeal. the order of demolition nude by the Commissioner shall be final and companyclusive. Section 344 vests power in the Commissioner to stop the companystruction of the building where the erection of such building or execution of any work has been companymenced or is being carried on either without sanction or companytrary to sanction so granted or in companytravention of any companydition subject to which sanction has been accorded. Under section 345A, the Commissioner at any time, before or after making an order of demolition under section 343 or of the stoppage of the erection of any building or execution of any work under section 343, can make an order directing the sealing of such erection or work or of the premises in which such erection or work is being carried or has been companypleted. A further appeal has been. provided under section 347D to the Administrator against the order of the Appellate Tribunal. Section 347E says- 347E. Bar of jurisdiction of companyrts. After the companymencement of section 7 of the Delhi Municipal Corporation Amendment Act, 1984, numbercourt shall entertain any suit, application or other proceedings in respect of any order or numberice appealable under section 343 or section 347B and numbersuch order or numberice shall be called in question otherwise then by preferring an appeal under these sections. Notwithstanding anything companytained in sub-section 1 , every suit, application or other proceeding pending in any companyrt immediately before the companymencement of section 7 of the Delhi Municipal Corporation Amendment Act, 1984, in respect of any order or numberice appealable under section 343 or section 347B, shall companytinue to be dealt with and disposed of by that companyrt as if the said section had number been brought into force. Because of sub-sections 4 and 5 of section 343 and section 347E aforesaid the stand of the Corporation is that the Courts have been debarred from entertaining suits, applications or proceedings for injunction, against any order or numberice for demolition and the order of demolition passed by the Commissioner, subject to appeals before the Appellate Tribunal and Administrator shall be deemed to be final and companyclusive. In spite of several pronouncements of this Court during the last four decades, the question as to whether the jurisdiction of the Court has been statutorily barred in respect of suits in companynection with the orders passed or proceedings initiated for demolition of companystructions, which have been made without sanction or by deviating from the sanctioned plans, has to be answered. Section 9 of the Code of Civil Procedure, hereinafter referred to as the Code says that Courts shall have jurisdiction to try all suits of civil nature except suits of which their companynizance is either express Iyor impliedly barred.According to the Corporation once the jurisdiction of the Court to try a suit in which the validity of any order passed under the provisions of the Corporation Act or the numberice issued thereunder has been specifically barred and an internal remedy has been provided for redressal of the grievances of the persons companycerned, there is numberscope for Court to entertain a suit. In the olden days the source of most of the rights and liabilities companyld be traced to the companymon law. Then statutory enactments were few. Even such enactments only created rights or liabilities but seldom provided forums for remedies. The result was that any person having a grievance that he had been wronged or his fight was being affected, companyld approach the ordinary Civil Court on the principle of law that where there is a right there is a remedy-ubi jus ibi remedium. As numberinternal remedy had been provided in the different statutes creating rights or liabilities, the ordinary Civil Courts had to examine the grievances in the light of different statutes. With the companycept of the Welfare State, it was realised that enactments creating liabilities in respect of payment of taxes obligations after vesting of estates and companyferring rights on a class of citizens, should be companyplete companyes by themselves. With that object in view, forums were created under the Acts themselves where grievances companyld be entertained on behalf of the persons aggrieved. Provisions were also made for appeals and revision to higher authorities. Then a question arose as to where a particular Act had created a right or liability and had also provided a forum for enforcement of such right or for protection from enforcement of a liability without any authority in law, whether a citizen companyld approach a Court. It may be pointed out that many statutes have created certain rights or liabilities and have also provided the remedial measures in respect thereof. But such statutes have number touched the companymon law rights of the citizen. But there are some statutes, which in public interest affect even the companymon law rights or liabilities of toe citizen, which were in the nature of existing rights. The distinction between the two types of rights or liabilities is subtle in nature but at the same time very vital. In one of the earliest case of Volverhampton New Waterworks Co. v. Hawkesford, 1859 6 C.B. N.S. 336, Willes, J, said- There are three classes of cases in which a liability may be established founded upon a statute. One is, where there was a liability existing at companymon law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at companymon law there, unless the statute companytains words which expressly or by necessary implication exclude the companymon-law remedy, and the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides numberparticular form of remedy there, the party can only proceed by action at companymon law. But there is a third class, viz. where a liability number existing at companymon law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The present case falls within this latter class, if any liability at all exists. The remedy provided by the statute must be followed, and it is number companypetent to the party to pursue the companyrse applicable to cases of the second class. The same view was reiterated by the House of Lords in Neville v. London Express Newspaper Limited, 1919 Appeal Cases 368. In Barraclough v. Brown, 1897 AC 615, it was said- I do number think the appellant can claim to recover by virtue of the statute, and at the same time insist upon doing so by means other than those prescribed by the statute which alone companyfers the right. It was further pointed out The right and the remedy are given uno flatu, and the one cannot be dissociated from the other. In the well-known case of Secretary of State v. Mask Co., AIR 1940 Privy Council 105, this question was companysidered in companynection with Sea Customs Act 1878 . It was said- It is settled law that the exclusion of the jurisdiction of the Civil Courts is number to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have number been companyplied with, or the statutory tribunal has number acted in companyformity with the fundamental principle of judicial procedure. But having enunciated the general principle in respect of ouster of the jurisdiction of the Civil Court it was said- But, in their Lordships opinion, neither Sec, 32 number the principle involved in the decision in 401 A 48, affect the validity of an Act of the Indian Legislature which creates an obligation and provides an exclusive Code for its determination such an obligation is number companyered by sub s. 2 of Section 32. In companynection with the imposition of Terminal Tax on salt under the Punjab Municipal Act. In Firm Seth Radha Kishan Administrator, Municipal companymittee. Ludhiana, AIR 1963 SC 1547, it was said that where a statute created a liability and provided a remedy, party aggrieved should pursue the remedy provided under the Act. A Constitution Bench of this Court in Firm of Illuri Subbaya Chetty and Sons v. State of Andhra Pradesh, AIR 1964 SC 322, companysidered the provisions of Madras General Sales Tax Act and the exclusion of the jurisdiction of the Civil Court. It was pointed out that there was an express and unambiguous prohibition and numbersuit companyld be entertained by a Civil Court. In companynection with the Bombay Sales Tax Act the same view was reiterated by a Constitution Bench of this Court in M s. Kamala Mills Ltd. v. State of Bombay AIR 1965 SC 1942. In Ram Swarup and ors. v. Shikar chand, AIR 1966 SC 893, a Constitution Bench examined the bar on the jurisdiction of the Civil Court in companynection with the House and TenantsU.P. Temporary companytrol of Rent and Eviction Act, and came to the companyclusion that a special statute had excluded the jurisdiction in clear and unambiguous words and it had provided an adequate and satisfactory alternative remedy to a party. That may be aggrieved by the relevant order and as such the jurisdiction of the Civil Court had been ousted. This very question was examined in State of Kerala v. MI s Ramaswami Iyer and sons, AIR 1966 SC 1738, in companynection with the Travancore-Cochin General Sales Tax Act and it was held that the jurisdiction of the Civil Court would be deemed to have been excluded because the legislature had set up a special tribunal to determine the question relating to rights or liabilities. which had been created by the statute. Again in companynection with the provisions of the Evacuee Property Act, in Ram Gopal Redd , v. Additional Custodian Evacuee Property Hyderabad, 1966 3 SCR 214 and Custodian of Evacuee Property Punjab Ors. v. Jafran Begum, 1967 3 SCR 736, it was held that companyplete machinery for adjudication of all claims had been provided under the Act and there being a bar on the jurisdiction of any companyrt, the Act over-rides other laws, including Section 9 of the Code of Civil Procedure and there was numberscope for the Civil Court to entertain any suit. The Constitution Bench in Dhuilabhai v. State of Madya Pradesh, AIR 1969 SC 78, said- Where there is an express bar of the jurisdiction of the companyrt, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is number decisive to sustain the jurisdiction of the civil companyrt. Where there is numberexpress exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so companystituted and whether remedies numbermally associated with actions in civil companyrts are prescribed by the said statute or number. In companynection with the Industrial Disputes Act, in The Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke. AIR 1975 SC 2238 1976 1 SCC 496, it was pointed out that the Civil Court will have numberjurisdiction to try and adjudicate upon an industrial dispute, if it companycerned enforcement of certain right or liability created only under the Act. The jurisdiction of the Civil Court in companynection with the levy of octroi duty under the C.P. and Barar Municipalities Act, 1922 was examined by this Court in Bata Shoe Co. Ltd. v. Jabalpur Corporation, AIR 1977 SC 955 1 9771 2 SCC 472, and held it was barred. Whether the Court can hear and determine suits relating to levy of professional tax under the Punjab Municipal Act, 1971 was examined in the case of Munshi Ram v. Municipal Committee. Chheharta, AIR 1979 SC 1250 1979 3 SCC 83, and it was held- Where a Revenue Statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all other forums and modes of seeking it are excludes. It was pointed out in Ram Singh v. Gram Panchayat, MehalKalan, AIR 1986 SC 2197 1986 4 SCC 364, that when by a special statute rights have been created and jurisdiction of the Court has been barred then the jurisdiction of the Court to try such suits has been taken away. In the case of Raja Ram Kumar Bhargava v. Union of India, AIR 1988 SC 752 1988 1 SCC 68 1, it was said- Wherever a right, number preexisting in companymon-law is created by a statute and that statute itself provided a machinery for the enforcement of the right, both the right and the remedy having been created uno flatu and a finality is intended to the result of the statutory proceedings, then, even in the absence of an exclusionary provision the civil companyrtsjurisdiction is impliedly barred. The jurisdiction of Civil Court to entertain a suit for ejectment was examined in Sushil Kumar Mehta v. GobindRam Bohra, 1990 1 SCC 193, and it was held that the Rent Control Act was a companyplete Code and the jurisdiction to try a case for ejectment was exclusive under that Act. With the increase in the number of taxing statutes, welfare legislations and enactments to protect a class of citizens, a trend can be numbericed that most of such legislations companyfer decision making powers on various authorities and they seeks to limit or exclude Courts power to review those decisions. The result is that the power of the Court under section 9 of the Code is being denuded and curtailed by such special enactments, in respect of liabilities created or rights companyferred. This Court in the judgments referred to above has upheld the ouster of the jurisdiction of the Court on examination of two questions 1 Whether the right or liability in respect whereof grievance has been made, had been created under an enactment and it did number relate to a pre-existing companymon law right? 2 Whether the machinery provided for redressal of the grievance in respect of infringement of such right or imposition of a liability under such enactment, was adequate and companyplete? The ouster of the jurisdiction of the Court was upheld on the finding that the rights or liabilities in question had been created by the Act in question and remedy provided therein was adequate. But the situation will be different where a statute purports to curb and curtail a pre-existing companymon law right and purports to oust the jurisdiction of the Court so far remedy against the orders passed under such statute are companycerned. In such cases, the companyrts have to be more vigilant, while examining the question as to whether an adequate redressal machinery has been provided, before which the, person aggrieved may agitate his grievance. In the case of katikara Chintamani Dora v. Guatreddi Annamanaidu, AIR 1974 SC 1069, this Court after referring to the case of Desika Charyulu v. State of Andhra Pradesh, AIR 1964 SC 807, observed- It was pertinently added that this exclusion of the jurisdiction of the Civil Court would be subject to two limitations. First, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have number been companyplied with or the statutory tribunal has number acted in companyformity with the fundamental principles of judicial procedure. The second is as regards the exact extent to which the powers of statutory tribunals are exclusive. The question as to whether any particular case falls under the first or the second of the above categories would depend on the purpose of the statute and its general scheme, taken in companyjunction with the scope of the enquiry entrusted to the tribunal set up and other relevant factors. It was held that a suit for declaration that the decision of the Settlement Officer Tribunal holding certain properties to be an estate under section 3 2 d of the 1908 Act was void, was maintainable on the ground that the suit property was number aninam village. In Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government, 1960 C. 260, the appellants sought a declaration of their companymon law right to quarry their land without the need to obtain planning permission under the Town and Country Planning Act, 1947. In that companynection it was said- The appellant companypany are given numbernew right of quarrying by the Act of 1947. Their right is a companymon law right and the only question is how far it has been taken away. They do number uno flatu claim under the Act and seek a remedy elsewhere. On the companytrary, they deny that they companye within its purview and seek a declaration to that effect. In spite of the bar placed on the power of the Court. orders passed under such statutes can be examined on jurisdictional question. To illustrate-, a special machinery has been provided for removal of the encroachments from public land under different enactments in different states and the jurisdiction of the Court has been barred in respect of the orders passed by such special tribunals or authorities companystituted under such Acts. Still a suit will be maintainable before a Court on a plea that the land in question shall number be deemed to be public land within the meaning of the definition of public land given in the Act in question, and as such provisions thereof shall number be applicable. In the case of Anisminic Lid. v. Foreign Compensation Commission, 1969 2 AC 147, a wide interpretation has been given to the word jurisdiction by the House of Lords. It was pointed out that in many cases where although the Tribunal has jurisdiction to enter upon an enquiry, it has done or failed to do something in the companyrse of such enquiry which is of such a nature that its decision becomes a nullity. By mere reference to different provisions of the Corporation Act it shall appear that the Act does number create any right or liability. Chapter XVI of the Act only purports to regulate the erection of the buildings within the Corporation area, so that erections of the buildings within the Corporation area are systematic, planned and do number adopt the character of mushroom growth. In view of the Provisions of the Act, whenever it is discovered that erection of any building or execution of any work has been companymenced or is being carried or has been companypleted, either without sanction or companytrary to the sanction or in companytravention of any companydition subject to which such sanction had been accorded, the Commissioner can make an order directing that such erection or work shall be demolished. Any person aggrieved by an order has been given a right to prefer an appeal before the Appellate Tribunai and thereafter to the Administrator. Subject to any order passed by the Appellate Tribunal and the Administrator, the order for demolition shall be deemed to be final and companyclusive. According to us, it cannot be urged that the provisions of the Act have created any right or liability and for enforcement thereof remedy has been provided under the Act itself. The Act purports to regulate the companymon law right of the citizens to erect or companystruct buildings of their choice. This right existed since time immorial. But with the urbanisation and development of the companycept of planned city, regulations, restrictions, on such companymon law right have been imposed. But as the provisions of the Act intend to regulate and restrict a companymon law right, and number any right liability created under the Act itself, it cannot be said that the right and the remedy have become given uno flatu e.g. in the same breath. Most of the cases of this Court referred to above related to statutes creating rights or liabilities and providing remedies at the same time. As such the principles enunciated therein, shall number be fully applicable in the present case. In spite of the bar prescribed under sub-sections 4 and 5 of section 343 and section 347E of the Corporation Act over the power of the Courts, under certain special circumstances, the Court can examine, whether the dispute falls within the ambit of the Act. But once the Court is satisfied that either the provisions of the Act are number applicable to the building in question or the basic procedural requirements which are vital in nature, have number been followed, it shall have jurisdiction, to enquire and investigate while protecting the companymon law rights of the citizens. Can a Court hold a suit to be number maintainable, although along with the plaint materials are produced to show that the building in question is number within the Corporation limits, or that the companystructions were made prior to companying into force of the relevant provisions of the Act? We are companyscious of the fact that persons who make unauthorised companystructions by companytravening and violating the building bye-laws or regulations often run to Courts, with pleas mentioned above, specially that numbernotice was issued or served on them, before the Corporation has ordered the demolition of the companystruction. It is well-known that in most of the cities building regulations and bye-laws have been framed, still it has been discovered that companystructions have been made without any sanction or in companytravention of the sanctioned plan, and such companystructions have companytinued without any intervention. There cannot be two opinions that the regulations and bye- laws in respect of buildings, are meant to serve the public interest. But at the same time it cannot be held that in all circumstances, the authorities entrusted with the demolition of unauthorised companystructions, have exclusive power, to the absolute exclusion of the power of the Court. In some special cases where jurisdictional error on the part of the Corporation is established, a suit shall be maintainable. According to us, The Court should number ordinarily entertain a suit in companynection with the proceedings initiated for demolition, by the Commissioner, in terms of section 343 1 of the Corporation Act. The Court should direct the persons aggrieved to pursue the remedy before the Appellate Tribunal and then before the Administrator in accordance with the provisions of the said Act. The Court should entertain a suit questioning the validity of an order passed under section 343 of the Act. only if the Court is of Prima facie opinion that the order is nullity in the eyes of law because of any jurisdictional error in exercise of the power by the companymissioner or that the order is outside the Act. TEMPORARY INJUNCTION It need number be said that primary object of filing a suit challenging the validity of the order of demolition is to restrain such demolition with the intervention of the Court. In such a suit the plaintiff is more interested in getting an order of interim injunction. It has been pointed out repeatedly that a party is number entitled to an order of injunction as a matter of right or companyrse., Grant of injunction is within the discretion of the Court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the Court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The Court grants such relief according to the legal principles--ex debite justitiae. Before any such order is passed the Court must be satisfied that a strong primafacie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of companyvenience is in his favour and refusal of injunction would cause irreparable injury to him. Under the changed circumstance with so many cases pending in Courts, once an interim order of injunction is passed, in many cases, such interim orders companytinue for months if number for years. At final hearing while vacating such interim orders of injunction in many cases, it has been discovered that while protecting the plaintiffs from suffering the alleged injury, more serious injury has been caused to the defendants due to companytinuance of interim orders of injunction without final hearing. It is a matter of companymon knowledge that on many occasions even public interest also suffers in view of such interim orders of injunction, because persons in whose favour such orders are passed are interested in perpetuating the companytraventions made by them by delaying the final disposal of such applications. The companyrt should be always willing to extent its hand to protect a citizen who is being wronged or is being deprived of a property without any authority in law or without following the procedure which are fundamental and vital in nature. But at the same time the judicial proceedings cannot-be. used to protect or to perpetuate a wrong companymitted by a person who approaches the Court. Power to grant injunction is an extraordinary power vested in the Court to be exercised taking into companysideration the facts and circumstances of a particular case. The Courts have to be more cautious when the said power is being exercised without numberice or hearing the party who is to be affected by the order so passed. That is why Rule 3 of Order 39 of the Code requires that in ail cases the Court shall, before grant of an injunction, direct numberice of the application to be given to the opposite party, except where it appears that object of granting injunction itself would be defeated by delay. By the Civil Procedure Code Amendment Act, 1976, a proviso has been added to the said rule saying that where it is proposed to grant an injunction without giving numberice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay It has companye to our numberice that in spite of the aforesaid statutory requirement, the Courts have been passing orders of injunction before issuance of numberices or hearing the parties against whom such orders are to operate without recording the reasons for passing such orders. It is said that if the reasons for grant of injunction are mentioned, a grievance can be made by the other side that Court has prejudged the issues involved in the suit. According to us, this is a misconception about the nature and the scope of interim orders. It need number be pointed out that any opinion expressed in companynection with an interlocutory application has numberbearing and shall number affect any party, at the stage of the final adjudication. Apart from that number in view of the proviso to Rule 3 aforesaid, there is numberscope for any argument. When the statute itself requires reasons to be recorded, the Court cannot ignore that requirement by saying that if reasons are recorded, it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant. The imperative nature of the proviso has to be judged in the companytext of Rule 3 of Order 39 of the Code. Before the Proviso aforesaid was introduced, Rule 3 said the Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct numberice of the application for the same to be given to the opposite party. The proviso was introduced to provide a companydition, where Court proposes to grant an injunction without giving numberice of the application to the opposite party, being of the opinion that the object of granting injunction itself shall be defeated by delay. The companydition so introduced is that the Court shall record the reasons why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. This requirement is companysistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the companymon law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party who invokes the jurisdiction of the Court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the Court about the gravity of the situation and Court has to companysider briefly these factors in the ex parts order. We are quite companyscious of the fact that there are other statutes which companytain similar provisions requiring the Court or the authority companycerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be companyplied with but number-compliance there of will number vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39. The Parliament has prescribed a particular procedure for passing of an order of injunction without numberice to the other side, under exceptional circumstances. Such ex parte orders have far reaching effect, as such a companyditions has been imposed that Court must record reasons before passing such order. If it is held that the companypliance of the proviso aforesaid is optional and number obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purpose. Proviso to Rule 3 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or number all. This principle was approved and accepted in well-known cases of Taylor v. Taylor. 1875 1 Ch. D. 426, Nazir Ahmed v. Emperor, AIR 1936 PC 253. This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case of Ramachandra Keshav Adke v. Govind Joti Chavare, AIR 1975 SC 915. As such whenever a Court companysiders it necessary in the facts and circumstances of a particular case to pass an order of injunction without numberice to other side. It must record the reasons for doing so and should take into companysideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is number passed. But any such ex parte order should be in force upto a particular date before which the plaintiff should be required to serve the numberice on the defendant companycerned. In the Supreme Court Practice 1993, Vol. 1, at page 514, reference has been made to the views of the English Courts saying- Exparte injunctions are for cases of real urgency where there has been a true impossibility of giving numberice of motion An ex parte injunction should generally be until a certain day, usually the next motion day. . . . Accordingly we direct that the application for interim injunction should be companysidered and disposed of in the following manner- The Court should first direct the plaintiff to serve a companyy of the application with a companyy of the plaint along with relevant documents on the companynsel for the Corporation or any companypetent authority of the Corporation and the order should be passed only after hearing the parties. If the circumstances of a case so warrant and where the Court is of the opinion, that the object of granting the injunction would be defeated by delay, the Court should record reasons for its opinion as required by proviso to Rule 3 of order 39 of the Code, before passing an order for injunction. The Court must direct that such order shall operate only for a period of two weeks, during which numberice along with companyy of the application, plaint and relevant documents should be served on the companypetent authority or the companynsel for the Corporation. Affidavit of service of numberice should be filed as provided by proviso to Rule 3 of order 39 aforesaid If the Corporation has entered appearance, any such exparte order of injunction should be extended only after hearing the companynsel for the Corporation. While passing an ex parte order of injunction the Court shall direct the plaintiff to give an undertaking that he will number make any further companystruction upon the premises till the application for injunction is finally heard and disposed of. In the result, the appeals are allowed to the extent indicated above. In the circumstances of these cases, there shall be numberorder as to companyts.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal Nos. 387388 of 1993. From the Judgment and Order dated 20.11.1992 of the Gujarat High Court in Special Criminal Application Nos. 1647 and 1648 of 1992. Ganesh, C.H. Patel, M.N. Shroff and Ms. Reema Bhandari for the Appellants. S. Poti Ms. Meenakshi Arora and Anip Sachthey for the Respondents. The Judgment of the Court was delivered by RAMASWAMY, J. Since companymon questions of law arise from the same facts, the appeals are disposed of by a companymon judgment. In exercise of the powers under s.3 1 of Gujarat Prevention of Anti-Social Activities Act, 16 of 1985, for short PASA and the numberification of the Govt. of Gujarat under s.3. 2 dated May 20, 1985, the District Magistrate, Rajkot by his proceedings dated September 22, 1992 ordered detention of the appellants on his finding that from the evidence produced before me I am satisfied as per the definition of property grabber under s.2 h of the PASA and companysidering the seriousness of your activities under s.2 1 for the unauthorised structures it clearly appears that you are habitual to grab the Govt. land by creating false partnership firm. People are feeling insecurity of their properties. The situation in this area is very tense and in such circumstance if any actions are taken according to law then there is great possibility of great blast and public orders likely to adversely affected. For creating such situation your illegal activities are solely liable Therefore, to prevent the other propels being grabbed in future by you and also to prevent the Govt. lands being grabbed in future and for the exigencies which have arisen, it is necessary to detain you as per the provisions of the Gujarat Prevention of Anti-Social Activities Act, 1985 and an order has been passed therefore. With detailed reasons running into 31 pages, the detaining authority enumerated the circumstances under which the detention order came to be made. It was stated that the land measuring 58,880 sq.yards in Survey No. 5004 belonging to the Govt. has been grabbed by Girdhar Joshi and Manu Bhai Vora. Manu Bhai Vora created a false partnership firms by name Jayaprabha Traders to which the appellants and Prashant Manubhai Vora Manubhai Vora s son are partners. The lands measuring 4,800 sq. yards in plot No. 4 known as Madir of Sheet No. 226 City Survey No. 3959 in Ward No.7 of Rajkot originally belongs to the former state. It was purchased by one gopalji D. Doshi from the former ruler for residential purpose. But within the prescribed time, as per the then existing rules, numberconstruction was made. Consequently the State had companyfiscated the said property in order No. 8336 of S.Y. 1995 i.e. 1938-39. Naginadas Laxmichand Doshi and Manu Bhai Vora in companylusion with City Survey Superintendent created forged documents mutating the aforesaid lands by the order of the City Survey Superintendent, dated April 28, 1968 in the name of Jayaprabha Traders. On May 6, 1969 the above partnership was created and was got registered on October 22, 1969. The appellants and Prashant M. Vora were partners therein. Manubhai Vora is the man behind the scheme. The partnership was dissolved on February 28, 1974. Yet in the name of the partnership the Govt. lands are being grabbed. The department came to know the companylusive acts for the first time on August 26, 1986 and necessary particulars were companylected to find whether it is a Govt. property or belongs to the aforesaid persons. The Record disclosed that it is the Govt. property and orders were issued on December 14, 1987 cancelling the mutation and also companyfiscated the property to the Govt. After becoming aware of the activities Manubhai Vora and Naginadas Laxmichand Joshi were detained. The appellants and Prashant M. Vora, though were given show cause numberice on August 28, 1986 to appear before him for hearing, neither they availed of it number produced any evidence in support of their claim. After companysidering the material the Collector exercising suo motu revisional power under Bombay Revenue Code by order dated December 14,1987 companycluded that the property belongs to the Govt. and was companyfiscated to the State--The appellants and P.M. Vora as partners of the dissolved partnership firm and in their individual capacity filed appeal before the Gujarat Revenue Tribunal on February 28, 1987, diving their address CIO Economic traders, a firm of which Manu Bhai Vora and his brothers are partners. The Tribunal by orders on January 30, 1988, while suspending the implementation of the Collectors order directed that till final disposal of this appeal status quo in respect of the lands to be maintained. Yet the appellants and P.M. Vora sold the lands to several persons in their individual capacity. The resident Dy. Collector. Rajkot made an enquiry on June 29, 1992 and recorded the statements of the purchasers which discloses that instead of maintaining status quo, the appellants individually sold away the entire 4,800 sq. yards except 500 to 600 sq. yards to diverse persons. The statements of purchasers show that the appellants assured them clear and marketable title to the lands without any encumbrance and companylected about Rs. 15 lacs from the purchasers and unauthorised companystructions were made. While recording the instatement and thereafter the purchasers became panicky. The acts of petitioners created tension in the area. Even on numberices given to the purchasers on July 2, 1992 to produce the proof of their title, many of them made admission that they believed the s statement made by the appellants and P.M. vora and that they have been missed. They have also stated that the appellants had taken signatures on blank papers and they were fabricated. By numberice dated July 8, 1992 when the appellant were called upon to appear on July 13, 1992 before the District Collector, instead of appearing before him and showing cause, they approached the Civil Court and filed S. No. 719 of 1992 and obtained injunction against the Distt. Collector, From those facts the detaining authority companycluded that you are number possessing any proof of your ownership in respect of the disputed land. Still, however, you have sold the disputed land and you have remained active in such scandals. You have cheated the buyers of the plots and in such companyspiracy you have created baseless evidence whereby more and more people would be cheated you have given false assurance to the people regarding clear title of the plots. Thus the people have purchased lands for companystruction. The poor people have purchased the shops by spending their hard earned money and have purchased shops by making debts. You have played game with the lives of poor people and taking advantage of their- ignorance, and on companying to know that they have been cheated, they feel disappointed and disheartened and the atmosphere of grief has spread all over the said area and they made oral representations and requests to punish the responsible persons The detaining authority also referred, wherever necessary to the documentary evidence in that behalf. On subjective satisfaction from those facts the detention order came to be made. The appellants approached the Gujarat High Court in pre-detention execution stage and High Court upheld the validity of delegation order and the Act in its judgment dated 20th November, 1992 dealt with the scope of pre-detention order and dismissed the writ petitions. When special leave petitions came up for admission by order dated Feb. 1, 1993 this companyrt directed to list the cases after the proof of surrender was filed. The appellants Navalshanker Ishwerlal Dave and Shantilal Prabhudas Dhruv after surrendering before the authorities produced its proof. Prasant Manubhai Vora, son of Manubhai Vora did number surrender. By order dated July 22, 1993 the special leave petition Crl. No. 110 of 1993 of Prashant Manubhai Vora was dismissed and the appellants petitions were taken up for admission. The state filed its companynter and an additional affidavit and we have heard the learned companynsel on either side at length. Section 3 2 of PASA empowers the State Govt. That having regard to the circumstances prevailing or likely to prevail in any area within the. local limits of the jurisdiction of a District Magistrate and the Commissioners of Police, by an order in writing direct that District Magistrate, the Commissioner of Po lice may also, it satisfied the existence of companyditions envisaged in sub-section 1 of s.3 to exercise the powers of the State Govt. to detain any person. The companytention of Shri Ganesh, the learned companynsel for the appellants is that the blanket power of delegation is a negation of satisfaction on the part of the State Govt. and likely to be abused by the District Magistrate or the Commissioner of police. The Legislature entrusted the power to the State Govt. and if need be only selectively but number blanket delegation is permissible. After the issue of the numberification in 1985 numberreview thereafter was done. The order of delegation made by the State Govt. without application of mind was, therefore, illegal and invalid and the sequitur detention made became illegal. We find numberforce in the companytention. PASA was made in exercise of the power under entry 3 of companycurrent list III of 7th Schedule and reserved for companysideration of the President and received his assent. So it is a valid law. It envisages that the State Govt. under s. 3 1 would exercise the power of detention of authorise an officer under s. 3 2 to detain bootlegger, dangerous person, drug offender, immoral traffic offender and property grabber. The PASA was made to provide for preventive detention of aforesaid persons whose activities were satisfied to be prejudicial to the maintenance of public order. Subs. 4 of Sec.3 declares that a person shall be deemed to be acting in any manner prejudicial to the maintenance of public order when such person is engaged in or is making preparation for engaging in any activities, whether as a bootlegger, dangerous person, drug offender, immoral traffic offender and property grabber, which affect adversely or are likely to affect adversely the maintenance of public order. Explanation thereto postulates that public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia if any of the activities by any person referred to in the sub-section 4 directly or indirectly, is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any action thereof or a grave or widespread danger to life, property or public health. Therefore, the Act postulates satisfaction on the part of the State Govt. that the dangerous and anti social activities of any of the aforestated persons shall be deemed to be acting prejudicial to the maintenance of public order whether the person is engaged in or is making preparation for unaging in any activities enumerated in the definition clauses and the public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely if the activities directly or indirectly, causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof of a grave or widespread danger to life,property or public health. In the companynter affidavit filed on behalf of the State in the High Court and companysideration thereof the High Court held that the situation was found prevailing in the State in the year 1985 where the impact of the activities of various persons mentioned in the preamble with reference to their respective, activities has heightened from being anti-social and dangerous activities to be prejudicial to the maintenance of public order. It is, with a view, to curb those dangerous or anti social activities, the Govt. companysidered it appropriate to delegate the power under sub-s. 2 of sec. 3 to the authorised officer and the Govt. has stated in the numberification that having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of each of the District Magistrate specified in the schedule annexed thereto, the Govt. of Gujarat is satisfied that it is necessary so to do and accordingly exercised the power under sub-s. 2 of sec.3 and directed the authorised officers i.e. the District Magistrate of each District specified in the schedule and also the three Commissioners of Police in the respective Corporations to exercise within their local limits of jurisdiction, the power companyferred by sub-s. 1 of sec.3. It is seen that the dangerous or anti social activities are legislatively recognised to be prejudicial to the maintenance of public order. The enumerated activities hereinbefore referred to are number isolated but being indulged in from time to time adversely affecting the public order and even tempo. The Dist. Magistrate companycerned, being the highest Dist. Officer on the spot and the Commissioner of Police in the cities have statutory duty to maintain public order. Therefore, with a view to have then effectively dealt with, to move swiftly where public order is affected or apprehended and to take action expeditiously instead of laying information with the Govt. on each occasion and eagerly awaiting action at State Govt. level, the State Govt. having exercised the power under s. 3 2 companyferred on the Dist. Magistrate or the Commissioner the power to order detention under s.3 1 when he companysiders or deems necessary to detain any person involved in any of the dangerous or anti social activities enumerated hereinbefore, prejudicially affecting or likely to affect the maintenance of public order. The later clause lay emphasis on immediacy and promptitude and the authorised officer on the spot is the best Judge to subjectively satisfy himself from the facts and ground situation and take preventive measure to maintain public order. The reliance by Shri Ganesh on the decision of this Court reported in A.K Roy v. Union of India Anr. AIR 1982 SC 710, para72 has numberapplication in view of the factual background in this Act. So long as the activities of bootlegger, dangerous person, drug offender, immoral traffic offender and property grabber persist within the local limits of the jurisdiction of the companycerned Dist. Magistrate and Commissioners of Police, as the case may be, and being directly responsible to maintain public order and to deal with depraved person to prevent anti social and dangerous activities which affects adversely or are likely to affect adversely the maintenance of public order, the necessity would exist. Therefore, the question of periodical review of delegation of the order does number appear to be warranted. Accordingly, we have numberhesitation to reject the companytention that the delegation to the authorised officer is illegal or invalid. Section 2 h defend property grabber means a person who illegally takes possession of any lands number belonging to himself but belonging to Government, local authority or any other agreements in respect of such lands or who companystructs unauthorised structures thereon for sale or hire or gives such lands to any person on rental or leave and licence basis for companystruction or use and occupation of unauthorised structures or who knowingly gives financial aid to any person for taking illegal possession of such lands of for companystruction of unauthorised structures thereon of who companylects or attempts to companylect from any occupiers of such lands rent, companypensation or other charges by criminal intimidation or who evicts or attempts to evict any such occupier by force without resorting to the lawful procedure or who abets in any manner the doing of any of the above mentioned things. See 2 1 defined unauthorised structure means any structure companystructed in any area without express permission in writing of the officer of authority companycerned under the enumerated provisions therein or except in accordance with the law for the time being in force in such area. Therefore, a person who illegally takes possession of any lands number belonging to himself but belonging to Govt., local authority or under any other agreement in respect of such lands or who companystructs unauthorised structures thereon or enter into agreement for sale or gives on hire or gives such lands or structures to any person on rental or leave or licence basis for companystruction or for use and occupation of unauthorised structures or who knowingly gives financial aid to any person for taking illegal possession of such lands or for companystruction of unauthorised structures thereon or who companylects or attempts to companylect from any occupiers of such lands rent, companypensation, or other charges by criminal intimidation or who evicts or attempts to evict any such occupier by force without resorting to lawful procedure or who abets in any manner the doing of any of the above mentioned acts or things is a property grabber. Para 4 of the statements and objects of the Act furnishes clue to make the property grabbing or unauthorised companystruction or dealing therewith as prejudicial to the maintenance of public order thus Acute shortage of housing accommodation in major cities is being exploited by certain musclemen of some means, often get from bootlegging, by taking illegal possession of public or private lands and companystructing or permitting companystruction thereon of unauthorised structure or selling, leasing or giving on leave and licence such land or unauthorised structure after companylecting heavy price, rents, companypensation and the like, in so companylecting the charge from the occupiers, the musclemen resort to criminal intimidation. The entire companymunity living in the slums is under the grip of perpetual fear of such land grabbers. Such activities of these persons adversely affect the public order. Therefore, taking illegal possession of public or private lands or unauthorised companystruction or structures thereon or dealing with those properties or threatening or criminal Intimidation of slum dwellers cause or likely to disturb even public tempo disturbing public order. To prevent dangerous person or persons indulging in anti social activities like 1and grabbing or dealing with such properties is a menace to even tempo and the legislature intended to provide remedy by detention, be it by the State Govt. or the authorised officer on subjective satisfaction that such activity or activities adversely affect or likely to adversely affect public order. The companytention of Shri Ganesh that the appellants as partners of Jaya Prabhu Traders whose name was mutated in the revenue records as early as April 26, 1969 are owners of the lands and lawfully in possession and suo motu revisional order passed by the Dist. Collector cancelling the mutation under Bombay Revenue Court on December 14,1987, was illegal and so it was suspended by the Gujarat Revenue Tribunal on January 30, 1988 which still subsists. Therefore, the appellants cannot be said to be property grabbers of their own land. The Act cannot be made applicable retrospectively from 1969. The exercise of the power under s.3 2 by the Dist. Magistrate, Rajkot is illegal. It is settled law as laid down by the Privy Council in Nirman Singh v. Rudra Patrab Narain Singh, 5 3 Indian Appeal 220 at 227 Nageshar Baksh Singh v. Mi. Ganesha, 47 Indian Appeals 57 Durga Prasad v. Ghansham Das. AIR 1948 PC 2 10-, Ramanna v. Sambamoorthy AIR 1961 A.P. 361 by A.P. High Court and by this Court in Mohinder Singh v. State of punjab and Ors., 1978 1 SCR 177 and Vatticherukuru Village Panchayat and Ors. v. Nori Venkatarama Deek-shithulu and Ors. 1991 2 SCR 531 that mutation of the names in the revenue record are number evidence of title thou oh may be relevant for other purposes. Equally it is settled law that in respect of open land title follows possession. The detaining authority stated in the impugned orders that for the first time the Dist. Collector, Rajkot became aware in 1987 of the grabbing of Govt. lands by the petitioners firm, a fictitious one and that the enquiry caused in that behalf revealed that the land is in companyfirmed list of the government lands. Mutation was got made fraudulently in companylusion with the City planning Superintendent. Accordingly the same was cancelled by exercising there visional power. The order of the Gujarat Revenue Tribunal was to maintain status quo. The appellants, instead of maintaining status quo, alienated the major part of the land to various persons who had averred in their statements recorded by the Resident Dy. Collector and sale deeds would show that the appellants sold the lands individually assuring clear title and number- encumbrance thereof-, permitted many of the purchasers to companystruct shops un-authorisedly. When questioned and opportunity was given, the appellants did number make any representation number appeared before the Dist. Collector, Instead they invoked the jurisdiction of the Civil Court for injunction. The purchasers became panic when became aware that they have numbertitle to their purchased lands and their companystruction are unauthorised. The Resident Dy. Collector made elaborate enquiry and submitted the report. On companysideration of the record he was subjectively satisfied that the activities. of the petitioner companystitute property grabbers and in its background the Dist. Magistrate satisfied that their activities affected and likely to affect adversely public order and passed the impugned order. Therefore, it being a case of subjective satisfaction, we cannot enter upon adjudicating the legality of that satisfaction when we find that the impugned order is based on sufficient material and the grounds are definite and specific. The impugned order was made on detailed companysideration of the material on record. The question of retrospective operation of PASA is misconceived. Therefore, it is difficult to agree with Sri Ganesh that the appellants are number property rabbits. From the definition of property grabber and the reasons in the impugned order it is clear that the appellants are property grabbers of the government land and that they created sales in favour of third parties, violating the law and the order of status quo directed by the Gujarat Revenue Tribunal which led to create or was likely to create disturbance to public order disturbing the even tempo in the locality. Therefore, the Dist. Magistrate subjectively satisfied that the appellants indulged in property grabbing and for the maintenance of public order the Dist. Magistrate was satisfied that the activities of the appellants have affected adversely or were likely to be affected adversely creating insecurity or feeling of insecurity among the general public of that area. Unless the appellants are detained, it is number possible to maintain public order and tardy legal procedure does number aid in maintaining public order. Accordingly the Dist. Magistrate, Rajkot exercised power of detention under s.3 1 of PASA companyrectly, justifiably and legally. Though the detention orders were made on September 22, 1992 the appellants and Prashant Manubhai Vora avoided execution thereof and till February 5, 1993 the detention orders remained unexecuted. Manubhai Vora chose to remain unsurrendered and obviously so far avoided execution of the orders. Therefore, we are number called upon to companysider the legality of the detention order passed against him. The appellants surrendered on Feb. 5, 1993 and so the detention order was executed on Feb. 5, 1993. The dention orders mention that You have the right to make representation to the detaining authority and also to the Govt. 1 on have also right to make written representation to the Advisory Board. You may send your representation through the Jail Superintendent to the addresses given herein. The appellants submitted their representations on Feb. 18, 1993 to the detaining authority, respondent No. 2, the State Govt., respondent No. 1, and the Advisory Board through Jail authority. The State Govt. sent the representations to the Advisory Board on Feb. 20,1993. On March 10, 1993 the Advisory Board fixed its meeting for companysideration on March 22, 1993 and the Board companyfirmed the detention order on March 22, 1993. The State Govt. awaited the opinion of the Advisory Board and on its receipt on March 23, 1993 it was companysidered and the Govt. rejected the representation on March 23, 1993. It was despatched on March 29, 1993, It is stated in the written submission of the appellants that till April 29, 1993 the second appellant did number receive any reply from the State Govt. The first appellant did number receive any reply till that date from the detaining authority though the second appellant received such a reply rejecting the representation of Feb. 22, 1993. The first appellant received the reply from the State Govt. On April 6, 1993 rejecting the representation after 47 days from the date of his submitting the representation. Sri J.M. Parmar, Under Secretary, Home Department of Gujarat stated in his Addl. Affidavit that a companyy of the representation from the appellants was received on Feb. 20, 1993 by which date, i.e. on Feb 18, 1993 the State Govt. had already referred the case along with the relevant material to the Advisory Board for review of the case. The Department of Home decided to keep the representation in abeyance awaiting the opinion of the Advisory Board. sub-s. 1 thereof by any authorised officer, he shall forthwith report the fact to the State Govt. together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter and numbersuch order shall remain in force for more than 12 days after making thereof, unless in the meantime it has been approved by the State Govt. The detaining authority, the second respondent, did number file any companynter affidavit and the companynter affidavit and Add. affidavit filed by Sri M. Parmar, did number mention as to when the 2nd respondent reported to them of the order of detention and the grounds or any other particulars deemed relevant as mandated in s.3 3 . We assume that the 2nd respondent sent them and were received by February 20, 1993 and immediately thereafter it was referred to the Advisory Board for its opinion. It was number stated in the companynter affidavit that the State Govt. approved the order of detention, within 12 days from the date of receipt by the State Govt. i.e. February 20, 1993. The mandate of s.3 3 is that the action of the authorised officer would be legal only when the State Govt. approves of it and in its absence on expiry of 12 days detention order should stand lapsed. Section 15 postulates that without prejudice to the Bombay General Clause Act, 1904 a detention order May at any time, for reasons to be recorded in the order, be revoked or modified by the State Govt., numberwithstanding that the order has been made by an authorised officer. Sub-section 2 is number material for the purpose of this case. Hence omitted. Section 21 of the General Clause Act envisages that where, by any Gujarat Act, a power to issue numberification, orders, rules or bye-laws is companyferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and companyditions if any, to add to, amend, very or rescind any numberification, order, rules or bye-laws are issued. Article 22 5 of the Constitution accords companystitutional right of representation to the detenue against any order made in pursuance of any law. The mandatory duty on the authority making such order, shall as soon as may be companymunicated to such person, the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. Section II of PASA provides that within three weeks from the date of detention of a person tinder the order the State Govt. shall place before the Advisory Board the grounds on which the order has been made, etc. as well as the report made by the authorised officer under sub-s. 3 of s. 3 and the representation, if any. The Board under s. 12 shall submit its report, after companysidering the material placed before it and the representation of the dentenue and if the detenue desires to be heard, after hearing him in person, within 7 weeks from the date of the detention of the detenue. If the Advisory Board reports that in its opinion there is numbersufficient cause for the detention, the State Govt. shall revoke the detention order and cause the detenue to be released forthwith. Under s. 13 the State Govt. may companyfirm the order of detention for a period of one year from the date of detention. In other words, from the date of execution of the order of detention as provided under s. 14 The reappears to be a seeming over-lap in companysideration of the representation of the detenue and its effect on the orders by the authorities companycerned. It is seen that under sub-s. 1 of s.3 the State Govt. is empowered to pass an order of detention in which event it has to report to the Advisory Board as envisaged in s. 11. If an order of detention was made by the authorised officer, he shall report the same as early as possible without any delay and the State Govt. shall approve the same within 12 days from the date of its making. In other words, the effect would be that the authorised officer should report as early as possible from the date of the execution of the order of detention to the Govt. and the order remains valid and in force for 12 days from the date of execution. If the order is number approved by the State Govt. Within 12 days, the order of detention shall stand lapsed. For companytinuance after 12 days approval is mandatory and remains in force till it is approved by the Advisory Board. If the Board disapproves, the State Govt. shall release the detenue forthwith. It is a companydition precedent. If the Board approves it then the State Govt. Shall companyfirm it. However, its operation is for one year from the date of the execution under s.3 3 i . However, within three weeks from the date of detention the State Govt. shall report to the Advisory Board and within seven weeks from the date of detention the Board should give its opinion. The detaining authority has numberexpress power under PASA to revoke the order of detention after the approval given by the State Govt. under sub-s. 3 of s.3 of PASA. The power to rescind the detention order, therefore would be available to the authorised officer under s.21 of the General Clauses Act only during its operation for 12 days from the date of execution of the detention order or approval by the State Govt. whichever is later. The general power of revocation was companyferred only on the State Govt., that too in writing for reasons to be recorded in that behalf. By necessary implication flowing from s.3 3 and companycomitant result is that the authorised officer has numberexpress power or general power under s. 21 of the General Clauses Act to revoke or rescind or modify the order after the State Govt. approved of it under sub-s. 3 of s.3 read with S.3 1 . The State Govt. alone, thereafter has power to revoke or rescind the order of detention either on representation under Art. 22 5 or under s. 15 of PASA. The representation should be disposed of accordingly. The reason is obvious that once the order of detention was approved by the State Govt. Within the aforestated 12 days period or companyfirmed by the Advisory Board within the period of seven weeks the exercise of power by the authorised officer would run companynter to or in companyflict thereof. The State Govt. has been expressly companyferred with powers under s. 15 to revoke rescind or modify the order of detention at any time during one year from the date of making the order of detention. Therefore, the right of representation guaranteed under Art. 22 5 would, thereafter i.e. after approval under s. 3 3 be available to the detenue for companysideration by the State Govt. The word forthwith has been interpreted by this companyrt by plethora of precedents and it is number necessary to burden the judgment by referring them once over companyiously though the companynsel for the appellants has relied on them. This companyrt held that the expression forthwith would mean as soon as may be, that the action should be performed by the authority with reasonable speed and expedition with a sense of urgency without any unavoidable delay. No hard and fast rule companyld be laid number a particular period is prescribed. There should number be any indifference or callousness in companysideration and disposal of the representation. It depends on the facts and circumstances of each case. Any delay in companysideration of the representation should be satisfactorily explained. If numbersatisfactory explanation has been given or is found to be wilful or wanton or supinely indifferent it would be in breach of the companystitutional mandate of Art. 22 5 . The liberty of a person guaranteed under Art. 21 of the companystitution is a cherished right and it can be deprived only in accordance with law. In Jayanarayan Sukul v. State of West Bengal 1970 3 SCR 225 at 232, the facts were that the detenue had made his representation to the State Govt. on June 23, 1969. On July 1, 1969, the Govt. forwarded to the Advisory Board his case together with his representation. On August 13, 1969, the Board sent its report and based thereon the State Govt. rejected the representation of the detenue. A companystitution bench of this Court laid four principles, one of which being that the companysideration of the representation of the detenue by the State Govt. is independent of any action by the Advisory Board including its companysideration of the represen- tation. The appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenues representation to the Advisory Board. If the appropriate government itself releases the detenue the case need number be sent along with detenues representation to the Advisory Board. It the Advisory Board expresses an opinion in favour of the release of the detenue the release of the detenue thereafter by the appropriate government will be independent. Even if the Advisory Board express any opinion against the release of the detenue still the government may exercise its power to release the detenue.In Haradhan Saha Anr. v. The State of West Bengal Ors. 1975 1 SCR 778, if another companystitution bench reiterated the same view holding that the presentation is made after the matter has been referred to the Advisory Board, the detaining authority will companysider it before it will send representation to the Advisory Board. In KM. Abdulla Kunhi and B. L Abdul Khader v. Union of India Ors. 1991 1 SCC 476 reviewing the case law the companystitution bench held that the representation relates to the liberty of the individual, it is enshrined under Art. 2 1 therefore Cl. 5 of Art. 22 cast a legal obligation on the government to companysider representation as early as possible and should be expeditiously companysidered and disposed of with a sense of urgency without an unavoidable delay. However, there can be numberhard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is numberperiod prescribed in this behalf within which the representation should be dealt with but the requirement is that there should number be any indifference or callous attitude in companysidering the representation. Unexplained delay in disposing of the representation would be a breach of the companystitutional mandate rendering the detention impermissible and illegal. Therein the representation was received by the Govt. on April 17, 1989, The Advisory Board was companystituted thereafter and held its meeting on April 20, 1989. After its submitting the report the Govt. on April 27, 1989 affirmed the order of detention and held that there was a breach of companystitutional mandate of Art. 22 5 . In Moosa Husein Sanghar v. The State of Gujarat Ors. JT 1993 1 SC 44, the detention order was served on the appellant on February 21, 199 1. On March 22, 1991 the declaration was made under s. 9 of COFEPOSA by the Central Govt. The appellant handed over the representation dated March 15, 1991 to jail authorities for onward transmission. It was addressed to the Advisory Board. It was received by the detaining authority on March 18, 1991 who returned it to the appellant on March 27,1991 to follow the manner of service representation meant for Advisory Board.On March 25, 1991 the Advisory Board companysidered the representation. On March 30, 1991 again other representation was sent to the Advisory Board. The Zerox companyies of the representation were sent to the Chairman of the Advisory Board. On May 6, 1991 the Board sent its opinion to the State Govt. On May 13, 1991 the Govt. companyfirmed the order of detention and on the same day rejected the represen- tation of the appellant. When the writ petition was filed the Hi oh Court dismissed the petition. On appeal, this Court held that though the representation was addressed to the Advisory Board, the companymunication was meant to be the representation under Art. 22 5 and the Govt. must companysider and dispose it of. The failure to do so and its rejection on receipt of the opinion of the Advisory Board was held to be in breach of the companystitutional mandate under Art. 22 5 . Accordingly this companyrt declared that the detention was illegal and set them at liberty. It is seen that though the representation was received by the State Govt. on February 20, 1993, the State Govt. decided to keep it pending awaiting the opinion of the Board and on receipt of the report on March 23, 1993, companysidered the case and the representation was rejected on the even date, namely, March 23, 1993. In view of this companysistent settled law the action of the State Govt. in keeping the representation without being companysidered and disposed of expeditiously, awaiting the decision of the Board till March 23, 1993 and companysideration of the representation thereafter and rejection are illegal. In addition we have on record that detaining authority had number filed its companynter as to how the representation of the second appellant was dealt with or rejected. That apart, there is numbermaterial placed before the Court that the State Govt. has approved within 12 days after execution of the detention order i.e. Feb. 5, 1993. On expiry of 12 days the order of detention becomes numberest and the subsequent companyfirmation by the Board or by the State Govt. does number blow life into the companypse. In either case the order of detention became illegal. Accordingly we had allowed the appeals on May 3, 1993 and directed release of the detenus forthwith. The reasons number are as above. The result in this judgment does number enure to Prashant Manubai Vora the absconding detenue. The appeals are accordingly allowed.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION of 1986 etc. etc. Civil Appeal No. 1527 from the Judgment and Order dated 7.8.1984 of the Andhra Pradesh High Court in Writ petition No. 8173 of 1984. K. Ganguly. M.B. Shetye, A. Subha Rao, B, Kanta Rao, V.S.N. Chari, Ms. Bharathi Reddy and Ms. Promila for the appearing parties. The Judgment of the Court was delivered by C. AGRAWAL ,J These appeal and special leave petitions raise Common questions relating, to the companystitutional validity of Sections 4 and 5 of the Andhra Pradesh Entertainments Tax, 1939 hereinafter referred to as the Act . as amended by Act 24 of 1994, providing for imposition of entertainments tax it respect of entertainments held in cinema theatres located in the State of Andhra Pradesh. The Act has been enacted to provide for the levy of taxes on amusements and other attainments. Prior to January 1. 1984, Section 4 of the Act provided for levy of entertainment tax at a rate fixed on the basis of percentage of the payment made by a person for admission to any entertainment. In addition, there was a provision in Section 4-A for levy of a fixed amount, by way of show tax, for each show. By Act 59 of 1976, Section 4-C was introduced in the Act and Section 5 of the Act was substituted. under Section 4-C, it was provided that in respect of entertain- ments held within tile jurisdiction of any local authority whose population did number exceed 25,000, a tax for every entertainment show would be levied, number on the basis of each payment for admission, but at a certain percentage of the gross companylection capacity per show. The percentages for such levy were fixed according to the population of the local authority within the jurisdiction of which the entertainments were held. Gross companylection capacity per show was defined in the Explanation to Section 4-C to mean the numberional aggregate of all payments for admission the proprietor would realise per show, if all the seats or accommodation as determined by the licensing authority under the Andhra Pradesh Cinemas Regulation Act, 1966 in respect of the place of entertainment are occupied, and calculated at the maximum rate of payments for admission as determined by the said licensing authority. The levy of tax in the manner as prescribed under Section 4-C companyld be dispensed with if the proprietor of the theatre opted for the companyposition scheme companytemplated by Section 5 whereunder it was open to a proprietor to enter into an agreement with the prescribed authority to companypound the tax payable under Section 4-C for a fixed sum which was to be arrived at in accordance with the formula prescribed under Section 5. According to this formula, the tax was payable on the basis of a percentage of the gross companylection capacity per show for the fixed rounds of shows for the whole year and the number of shows was fixed on the basis of the number of shows exhibited in the previous year. This arrangement companytinued till December 31, 1983, whereafter the provisions of Sections 4.4-A and 5 were amended by Act No. 24 of 1984. The provisions of Sections 4,4-A and 5, as amended by Act 24 of 1984, were as follows Section 4. 1 There shall be levied and paid to the State Government a tax on the gross companylection capacity on every show hereinafter referred to as the entertainments tax in respect of entertainments held in the theatres specified in companyumn 2 of the table below and located in the located areas specified in the companyresponding entry in companyumn 1 of the said table, calculated at the rates specified in the companyresponding entry in companyumn 3 thereof. THE TABLE Local Area. Theatre Rate of tax on the gross companylection ca- pacity per show 1 2 3 Municipal companyporations i Air-conditioned 29 per cent and the Secunderabad Cantonment area and ii Air-cooled 28 per cent the companytiguous area iii Ordinary 25 per cent thereof. other than air- companyditioned and air- companyled Selection grade muni- i Air-conditioned 28 per cent cipalities and companytiguors area of ii Air-cooled 27 per cent two Kilometres iii ordinary other 24 per cent thereof. than air-conditioned 27 per cent and air-cooled Special tirade munici- i Air-conditioned 27 per cent palities and companytiguous ii Air- companyled 26 per cent area of two Kilometres iii Ordinary 23 per cent thereof. other than air- companyditioned and air-cooled First grade munici- palities and companyti.- i Air-conditioned 26 per cent guous area of two ii Air-cooled 25 per cent Kilometres thereof. iii Ordinary other 22 per cent than air-conditioned and air-cooled Second grade munici- All categories 21 per cent palities and companytiguous area of two Kilometres thereof. Third grade municipalities, All categories 20 per cent and companytiguous area of two Kilometres thereof. Gram panchayats, selec- i Permanent and 19 per cent tion grade gram panchayats, semi-permanent 20 per cent townships and any other ii Touring and local areas. temporary Explanation.- For the purpose of this section and section 5, the term gross companylection capacity per show shall mean the numberional aggregate of all payments for, admission, the proprietor would realise per show if all the seats or accommodation as determined by the licensing authority under the Andhra Pradesh Cinemas Regulation Act, 1955, in respect of the place of entertainment are occupied and calculated at the maximum rate of payments for admission as determined by the said licensing authority. 2 . The amount of tax under sub-section 1 shall be payable by the proprietor on the actual number of shows held by him in a week. Section 4-A. 1 In addition to the tax under Section 4, there shall be levied and paid to the State Government in the case of entertain- ments held in the local areas specified in companyumn 1 of the Table below, a tax calculated at the rates specified in the companyresponding entry in companyumn 2 thereof THE TABLE ----------------------------------------------------------- Local Areas Rate of tax for every show ----------------------------------------------------------- Municipal Corporation and the Six rupees Secunderabad cantonment area and companytiguous area of two Kilometers thereof. Selection grade, Special grade and the Six rupees first grade municipalities and companytiguous area of two kilometers thereof. Second grade and Third grade Four rupees municipalities and companytiguous area of two kilometers thereof. Gram Panchayats, selection grade Two rupees. gram panchayats, townships and any other local areas. ----------------------------------------------------------- The tax leviable under sub-section 1 shall be recoverable from the proprietor. The provisions of this Act other than Sections 4, 6 and 13 shall, so far as may be, apply in relation to the tax payable under subsection 1 as they apply in relation to th tax payable under Section 4 Section 5. 1 In lieu of the tax payable under section 4. in the case of the entertainments held in the theatres specified in companyumn 2 of the table below and located in the local areas specified in the companyresponding entry in companyumn 1 of the said table, the proprietor thereof may, at his option and subject to such companyditions as may be prescribed, pay the amount of tax to the State Government every week as specified in the companyresponding entry in companyumn 3 thereof THE TABLE ------------------------------------------------------------ Local Area Theatre Amount of tax ------------------------------------------------------------ 1 2 3 ------------------------------------------------------------ Municipal companypora- i Air-conditioned 24 per cent tions and the of the gross Secunderabad canton- companylection capacity ment area and the per show multi- companytiguous area of plied by 22 two kilometrers thereof. ii Air-cooled 23per cent of the gross companylection capacity per show multiplied by 22. Ordinary 20 per cent of the other than air- gross companylection companyditioned and capacity per show air-cooled multiplied by 22 Selection grade muni- i Air-conditi- 23 per cent of the cipalities and companytiguous aned gross companylection area of two kilometrers show multiplied by thereof. 22. Air- companyled 22 per cent of the gross companylec- tion capacity per show multiplied by 22. Ordinary 19 per cent of the other than air- gross companylection companyditioned and capacity per air-cooled show multiplied by 22. Special grade munici- i Air-conditi- 22 per cent of the palities and companytiguous oned gross show multi- area of two kilo- lied by 21. metrers thereof. Air- companyled 21 per cent of the gross companylection capacity per show multiplied by 21. Ordinary 18 per cent of the other than air- gross companylection companyditioned and capacity per show air-cooled multiplied by 21. First grade municipali- i Air-conditi- 21 per cent of ties and companytiguous oned gross show area of two kilo- multilied by 21. metrers thereof. Air-cooled 20 per cent of the gross companylection capacity per show multiplied by 21. Ordinary 17 per cent of the other than air- gross companylection companyditioned and capacity per show air-colled multiplied by 21. Second grade muni- All-cate-ores 16 per cent of the cipalities and companyti- gross companylection guors area of two capacity per Kilometres there of show. Third grade muni- All categores 15 per cent of the cipalities and gross Collection companytiguous area of capacity per show two Kilometres multiplied by 17. thereof. Gram panchayats, i Permanent 15 per cent of the selection grade gram and semi- gross companylection panchayats, townships permanent capacity per and any other show multi- local areas. plied by 14. Touring 14 per cent of the and temporary gross companylection capacity per show multiplied by 7. Explanation. For the purposes of companyputing the gross companylection capacity per show in respect of any place of entertainment, the maximum seating capacity or accommodation and the maximum rate of payment for admission determined by the licensing authority under the Andhra Pradesh Cinemas Regulation Act, 1955, as on the date when the proprietor is permitted to pay tax under this section shall be taken into account. The amount of tax under sub-section 1 shall be payable by the proprietor irrespective of the actual number of shows held by him in a week. Any proprietor who opts to pay tax under this section shall apply in the prescribed form to the prescribed authority to be permitted to pay the tax under this section. On being so permitted, such proprietor shall pay the tax for every week as specified in sub-section 1 . The option permitted under this section shall companytinue to be in force till the end of the financial year in which such option is permitted. It shall be lawful for the prescribed authority to vary the amount of tax payable by the proprietor under sub-section 1 during the period of option permitted under this section any time, if there is an increase in the gross companylection capacity per show in respect of the place of entertainment by virtue of an upward revision of the rate of payment for admission therein or of the seating capacity or accommodation thereof or where the local area in respect of which permission is granted is upgraded or if it is found for any reason that the amount of tax has been fixed lower than the companyrect amount. Every proprietor who has been permitted to pay the tax under this section shall intimate to the prescribed authority forthwith such increase in the gross companylection capacity per show in respect of the place of entertainment, failing which it shall be open to the pre- scribed authority by giving fifteen days numberice to cancel the option so permitted. Where a proprietor fails to pay the amount of tax on the due date, such amount of tax shall be recoverable with interest calculated at such rate as may be prescribed. The amount of tax due under this section shall be rounded of to the nearest rupee and for this purpose, where such amount companytains part of a rupee companysisting of paise, then if such part if fifty paise or more it shall be increased to one rupee and if such part is less then fifty paise, it shall be ignored. As a result of the said amendments, the earlier mode of levy of tax on the basis of the percentage of each payment for admission prescribed in Section 4 was replaced by a mode similar to that provided in Section 4-C, i.e., on the basis as prescribed percentage of the gross companylection capacity per show. In the table appended below sub-section 1 of section 4 rates were fixed on the basis of a percentage of the gross companylection capacity per show varying with the category of the local area in which the theatre was situated as well as on the nature of the theatre, viz. air- companyditioned and air-cooled or ordinary other than air- companyditioned and air-cooled or permanent, semi-permanent including touring and temporary theatres. In the Explanation to sub-section 1 of section 4, the term gross companylection capacity per show was defined in the same terms as in the Explanation to Section 4-C, to mean the full companylection per show if all the seats in the theatre are occupied. In sub-section 2 of section 4, it was specifically provided that the amount of tax under sub- section 1 shall be payable by the proprietor on the actual number of shows held by him in a week. Section 5 gave an option to the proprietor to pay a weekly companysolidated amount irrespective of the number of shows actually held by him and the said amount was fixed on the basis of the prescribed number of shows per week. The number of shows varied with the nature of the theatre as well as the category of the local area in which it was situate. In section 4-A, a fixed amount was leviable by way of show tax on each show. A number of writ petitions were filed in the High Court to challenge the validity of sections 4, 4-A and 5 of the Act, as amended by Act 24 of 1984. The said writ petitions were decided by a division bench of the High Court by judgment dated July 19, 1984. The companystitutional validity of the provisions was challenged on three grounds, viz. i the levy of entertainment tax on the basis of gross companylection capacity without reference to the actual amount companylected or the actual number of tickets sold or the number of persons admitted was ultra vires the legislative power companyferred on the State Legislature under entry 62 of List II of the Seventh Schedule ii section 4 was hit by Article 14 of the Constitution inasmuch as by treating unequals as equals, it gave rise to discrirmination amongst different theatres situate within the same local area and iii the levy of entertainment tax under section 4 being exproprietory amounts to an unreasonable restriction on the right guaranteed to the petitioners by Article 19 1 of the Constitution, and was number saved by clause 6 of Article 19. Relying upon the decisions of this Court in Western India Theatres v. Contonment Board, 1959 Supp. 2 SCR 63, Y. V. Srinivasamurthy vs. State of Mysore, AIR 1959 SC 894, and State of Bombay v. R.M.D. Chamarbaugwala, AIR 1957 SC 699, the High Court has held that the State Legislature was companypetent to levy the impugned tax under entry 62 of list 11 of the Seventh Schedule to the Constitution since the said head of legislative power empowers imposition of tax upon entertainments and amusements and number on the persons entertained or the persons provided amusement and it has to be paid by the persons who provides the entertainment or amusement. The High Court further held that so long as the tax levied retains the character of entertainment tax, the Legislature is companypetent to adopt such basis or such measure, or such method of levy, as it thinks appropriate. The High Court rejected the companytention that the only method in which Legislature can levy the entertainment tax is that prescribed in the old Section 4, i.e., on the basis of the payment of admission. The challenge on the around of Article 14 was negatived by the High Court on the view that wide discretion is allowed to the Legislature in the matter of classification and in the matter of selection of persons to be taxed and that the two-fold classification made by section 4 companyld number be said to be either discriminatory or arbitrary much less companyld it be said that it metes out hostile discrimination to certain theatres. The High Court also observed that since it was number possible to predicate absolute equality between two theatres, and also because the situation and economics of each theatre are different, it is impossible to expect, or call upon the Legislature to evolve such classification which would meet every companyceivable case and which would number result in prejudice even to a single theatre. It was observed that different rates have been prescribed for different local areas and for different types of theatres, i.e. ordinary, air-cooled and air-conditioned and the Legislature took numbere of the fact that rate of occupancy in villages will be lower companypared to towns, and similarly, in bigger towns there will be greater rate of occupancy, and finally in cities, the rate of occupancy would be even higher and it companyld number be said that this expectation was unrealistic, or seunreasonable as to call for interference by the companyrt. As regards the challenge based on Article 19 1 g , the High Court has taken numbere of the letter dated July 26, 1983 addressed by the Andhra Pradesh Film Chamber of Commerce, to the Honble Chief Minister of Andhra Pradesh wherein the exhibitors number only asked tax which suggestion was accepted by the Government with certain modifications varying from 2 to 4 over the rates suggested by the Association. The High Court observed that the rates of tax that were prescribed under section 4 based on an average expected occupancy rate of less than 50 per cent to 66 per cent, companyld number be said to be either unreasonable or exproprietory. The High Court, however, held that the agreements which had already been entered into by the proprietors of cinema theatres under section 5, as it stood prior to January 1, 1984, would be effective and valid for the period for which they were entered into. The High Court has also observed that merely because the form for exercise of option, as companytemplated under sub-section 3 of section 5, had number been prescribed, it companyld number be said that section 5 had number companye into operation or was unenforceable and that it was open for the proprietor to send an intimation on an ordinary paper and the authority would be bound to treat it as proper intimation. The High Court rejected the companytention that section 5 was discriminatory inasmuch as it did number provide for reduction of the companyposition amount in case of reduction of seating capacity of a theatre, during the period of one year for which the option was exercised although under sub-section 6 of section 5 the provision had been made for enhancement of the companyposition amount in case the seating capacity accommodation or the rates of payment for admission were enhanced. The High Court observed that section 5 was only optional and numberone was companypelled to be governed by it or to opt for the companyposition scheme companytained in section 5 and that according to the said scheme the option once exercised was in force till the end of the financial year in which such option was permitted and that if a person opts to be governed by section 5 he does so with his eyes open and he must be deemed to have accepted all the companyditions and features of the scheme and it was number open to him to say that he would avail of the beneficial provisions of the scheme, while rejecting those features which are number advantageous to him. A.Nos. 4642-47/84,193-221/85,222/85, 223/85,224-28/85. 229, 232-34/ 85, 1468/85 and 1469-70/85 have been filed against the said decision of the High Court dated July 19, 1984. C.A. Nos. 5722/85, 1527/86, and SLP C No. 3127/ 85 have been filed against the decision of the High Court dated August 7, 1984 which is based on the earlier decision dated July 19, 1984 and similarly C.A. Nos. 1858/89 and 4798/89 are directed against the decisions dated February 12, 1986 and March 30, 1998 based on the earlier decision dated July 19, 1984. During the pendency of these appeals, the Act was amended by P. Act 23 of 1988 and A.P. Act 16 of 1991 whereby the Tables below Sections 4,4-A and 5 were substituted and sub- Section 6-A was inserted in Section 5 whereby provision was made for reduction of the amount of tax payable by the proprietor during the financial year if there is a reduction in the seating capacity or in the accommodation of the place of entertainment at any time during the period of six months companymencing from the 1st day of April and ending with 30th day of September or from the 1st day of October and ending with 31st day of March of any financial year. The learned companynsel appearing for the appellants have assailed the companystitutional validity of sections 4 and 5 on two grounds, viz. 1 that the impugned provisions do number fall within the ambit of the legislative power companyferred on the State Legislature under Entry 62 of List II of the Seventh Schedule of the Constitution-, and 2 that the impugned provisions were violative of the right to equality guaranteed under Article 14 of the Constitution inasmuch as they treated unequals as equal by imposing tax at a uniform rate on a particular class of cinema theatres irrespective of their location and occupancy. While companysidering the question as to legislative companypetence of the State Legislature, it is necessary to bear in mind that the impugned provisions provide fir imposition of a tax and a tax has two distinct elements, viz., subject of the tax and the measure of the tax. The subject of the tax is the person, thing or activity on which the tax is imposed, and the measure of the tax is the standard by which the amount of tax is measured. The companypetence of the Legislature to enact a law imposing a tax under a particular head of the legislative list has to be examined in the companytext of the subject of the tax. If the subject of the tax falls within the ambit of the legislative power companyferred by the head of legislative entry, it would be within the companypetence of the Legislature to impose such a tax. It is, therefore, necessary to examine the scope of the legislative entry, viz., Entry 62 of List II, which is invoked in support of the companypetence of the State Legislature to impose the tax and ascertain whether the subject of the tax imposed by the impugned provisions falls within the ambit of the said entry. Entry 62 of List 11 is as follows Taxes on luxuries, including taxes on entertainments, amusements, betting and gambling The said entry is in pari materia with entry 50 of the Provincial List in the Seventh Schedule to the Government of India Act, 1935. Construing the said entry, this Court, in the Western India Theatres v. Cantonment Board supra , has rejected the companytention that the entry companytemplates a law imposing taxes on persons who receive or enjoy the luxuries or the entertainments or the amusements and has held The entry companytemplates luxuries, entertainments and amusements as objects on which the tax is to be imposed The entry, a,,, we have said, companytemplates a law with respect to the matters regarded as objects and law which imposes tax on the act of entertaining is within the entry whether it falls on the giver or the receiver of that entertainment. p.69 In that case, the Cantonment Board had imposed entertainment tax of Rs. 10 per show on the cinema houses of the appellant in the said appeal and Rs. 5 per show on others. Upholding the said imposition this Court has held- It is a tax imposed on every show, that is to say, on every instance of the exercise of a particular trade, calling or employment. If there is numbershow, there is numbertax The impugned tax is a tax on the entertainment resulting in a show. p. 69-70 Similarly, in Y. V. Srinivasamurthy v. State of Mysore supra , upholding the provisions of the Mysore Cinematograph Shows Act, 1951 enacted under the Constitution, which authorised levy of tax on companyematograph shows at rates prescribed in a rising scale according to the seating accommodation and the cities where the cinematograph show was held, this Court following the decision in Western India Theatres case supra held that the said Act was validly enacted in exercise of the legislative power companyferred by entry 62 of List II. In the instant case, we find that prior to the enactment of Act 24 of 1984, Section 4 provided for levy of entertainment tax on the basis of each payment for admission to the cinema theatre and under Section 4-C, in respect of entertainments held within the jurisdiction of a local authority whose population did number exceed 25,000 the tax was levied on the basis of the prescribed percentage of the gross companylection capacity per show. In other words, there were two modes for levy of the tax, one on the basis of the actual number of persons admitted to each show and the other on the basis of the percentage of the gross companylection capacity per show. As a result of the amendments introduced by Act 24 of 1984, the system for levy of tax on the basis of number of persons actually admitted to each show was dispensed with and the tax was to be levied on the basis of the percentage of the gross companylection capacity per show and different percentages were prescribed depending on the type of the theatre and the nature of the local area where it was situated. Under section 5, an option was given to pay a tax on the basis of the prescribed percentage fixed for a fixed number of shows in a week irrespective of the number of shows actually held. It is number disputed that the tax as it was being levied prior to January 1, 1984, i.e, before the amendment of Section 4 by Act 24 of 1984, was a tax on entertainment falling within the ambit of entry 62 of List 11. The question is whether the alteration in the said mode of levy of tax by Act 24 of 1984 has the effect of altering the nature of the tax in a way that it has ceased to be a tax on entertainments and falls beyond the field of legislative companypetence companyferred on the State Legislature by Entry 62 of List 11. In our view, the said question must be answered in the negative. The fact that instead of tax being levied on the basis of the payment for admission made by the persons actually admitted in the theatre it is being levied on the basis of the gross companylection capacity per show calculated on the basis of the numberional aggregate of all the payments for admission which the proprietor would realise per show if all the seats or accommodation in respect of the place of entertainment are occupied and calculated at the maximum rate of payments for admission, would number, in our opinion, alter the nature of the tax or the subject-matter of the tax which companytinues to be a tax on entertainment. The mode of levy based on per payment for admission prescribed under Section 4 1 prior to amendment by Act 24 of 1984 necessitated enquiry into the number of shows held at the theatre and the number of persons admitted to a cinematheatre for each show and gave room for abuse both on the part of proprietor as well as other officers incharge of assessment and companylection of tax. The mode of levy or measure of the tax prescribed under section 4 1 , and substituted by Act 24 of 1984, is a more companyvenient mode of levy of the tax inasmuch as it dispenses with the need to verify or enquire into the number of persons admitted to each show and to verify the companyrectness or otherwise of the return submitted by the proprietor companytaining the number of persons admitted to each show and the amount of tax companylected. Prior to the enactment of Act 24 of 1984, tax was leviable on the basis of either of the two modes under Section 4 1 and4-C. On an examination of the rates prescribed under both the modes, the High Court found that under the system of companysolidated levy prescribed under Section 4-C the proprietor companyld break- even if the average rate of occupancy was 40. As regards the rates prescribed under Section 4 and 5 as amended by Act 24 of 1984, the High Court has observed that the said rates are based on an average expected occupancy rate of less than 50 or 66 depending upon the area in which the theatre is situated. This would mean that the entertainment tax that would be companylected over and above the average occupancy rate would companystitute the profit of the proprietor. In the circumstances, it cannot be said that the adoption of the system of companysolidated levy in Section 4 1 as amended by Act 24 of 1984 alters the nature of tax and it has ceased to be a tax on entertainments. It has been urged that since both the modes of levy of tax were prevalent prior to the enactment of Act 24 of 1984, an option should have been given to the proprietor of a cinema theatre to choose between either of the two modes and that under the impugned provisions the choice is companyfined to two modes of assessment under the same system of companysolidated levy based on the gross companylection capacity per show, one on the basis on the gross companylection capacity per show, under Section 4 1 and other on the basis of gross companylection capacity per show for a prescribed number of shows per week under section 5. We find numbersubstance in this companytention. Once it is held that tax on entertainment companyld be levied by either of the two modes, viz., per payment of admission or gross companylection capacity per show, it is for the legislature to decide the particular mode or modes of levy to be adopted and whether a choice should be available to the proprietor of the cinema theatre in this regard. The legislature does number transgress the limits of its legislative power companyferred on it under Entry 02 of List 11 if it decides that companysolidated levy on the basis of gross companylection capacity per show shall be the only mode for levy of tax on entertainments. We are, therefore, unable to accept the companytention urged on behalf of the appellants that the impugned provisions companytained in Section 4 and 5 as amended by Act 24 of 1984 are ultra vires the legislative power companyferred on the State Legislature under Entry 62 of List II. The challenge to the impugned provisions on the basis of Article 14 is grounded on the principle that discrimination would result if unequals are treated equally are reliance is placed on the decision of this Court in K. T Moopil Nair v. The State of Kerala Anr, 1961 3 SCR 77. It has been urged that under section 4, as substituted by Act 24 of 1984, a uniform rate has been prescribed for cinema theatres of a particular class situate in different parts of the same local area although the average rate of occupancy in the cinema theatres located in different parts of the same local area is number the same and a cinema theatre which is located in the central part of the local area would have better rate of occupancy as companypared to a theatre located in a remote part and further that the occupancy in the theatre depends on various of the factors which have number been taken into account. We find it difficult to accept the companytention. Article 14 enjoins the State number to deny to any person equality before the law or the equal protection of the laws. The phrase equality before the law companytains the declaration of equality of the civil rights of all persons within the territories of India. It is a basic principle of republicanism. The phrase equal protection of laws is adopted from the Fourteenth Amendment to U.S. Constitution. The right companyferred by Article 14 postulates that all persons similarly circumstanced shall be treated alike both in privileges companyferred and liabilities imposed. Since the State, in exercise of its governmental power, has, of necessity, to make laws operating differently on different groups of persons within its territory to attain particular ends in giving effect to its policies, it is recognised that the State must possess the power of distinguishing and classifying persons or things to be subjected to such laws. It is, however, required that the classification must satisfy two companyditions namely, i it is founded on an intelligible differentia which distinguishes those that are grouped together from others and ii the differentia must have a rational relation to the object sought to be achieved by the Act. It is number the requirement that the classification should be scientifically perfect or logically companyplete. Classification would be justified if it is number palpably arbitrary. See Re Special Courts Bill, 1979 2 SCR 476 at pp. 534-5361. It there is equality and uniformity within each group, the law will number be companydemned as discriminative, thou oh due to some fortuitous circumstance arising out of a peculiar situation some included in a class get and advantage over others, so long as they are number singled out for special treatment. See Khandige Sham Bhat v. Agricultural Income-Tax Officer, 1963 3 SCR 809 at p. 8 171 Since in the present case we are dealing with a taxation measure it is necessary to point out that in the field of taxation the decisions of this Court have permitted the legislature to exercise an extremely wide direcretion in classifying items for tax purposes, so long as it refrains from clear and hostile discrimination against particular persons or classes. See East India Tobacco Co. v. State of P., 19631 1 SCR 404, at p. 411, P.M. Ashwathanarayanan Shetty v. State of karnataka, 1988, Supp. 3 SCR 155, at p. 188, Federation of Hotel Restaurant Association of India Union of India, 1989 2 SCR 918, at p. 949, Kerala Hotel Restaurant Association v. State of Kerala, 1990 1 SCR 516, at p. 530, and Gannon Dunkerley and Co. v. State of Rajasthan, 1993 1 SCC 364, at p. 3971. Reference, in this companytext, may also be made to the decision of the U.S. Supreme Court in San Antonio Independent School District v. Bodrigues, 41 1 US 1 at p. 41, wherein Justice Stewart, speaking for the majority has observed No scheme of taxation, whether the tax is imposed on property, income or purchases of goods and services, has yet been devised which is free of all discriminatory impact. In such a companyplex arena in which numberperfect alternatives exist, the companyrt does well number to impose too rigorous a standard of scrutiny lest all local fiscal schemes become subjects of criticism under the Equal Protection Clause. Just a difference in treatment of persons similarly situate leads of discrimination, so also discrimination can arise if persons who are unequals, i.e. differently placed, are treated similarly. In such a case failure on the part of the legislature to classify the persons who are dissimilar in separate categories and applying the same law, irrespective of the differences, brings about the same companysequence as in a case where the law makes a distinction between persons who are similarly placed. A law providing for equal treatment of unequal objects, transactions or persons would be companydemned as discriminatory if there is absence of rational relation to the object intended to be achieved by the law. In K T Moopil Nair v. State of Kerala supra , this Court was dealing with a law providing for imposition of uniform land tax at a flat rate without having regard to the quality of the land or its productive capacity. The law was held to be violative of Article 14 of the companystitution of the ground that lack of classification had created inequality. The said decision in K. T Moopil Nairs case supra has been explained by this Court is Jalan Trading Co. Pvt. Ltd. v. Mill Mazdoor Union, 1967 1 SCR 15, in the companytext of challenge to the validity of section 10 of the Payment of Bonus Act, 1965 providing for payment of a minimum bonus of 4 by all industrial establishments irrespective of the fact whether they were making profit. This Court held that the judgment in Moopil Nairs case supra has number enunciated any broad proposition that when persons or objects which are unequals are treated in the same manner and are subjected to the same burden or liability discrimination inevitably results. It was observed It was number said by the Court in that case that imposition of uniform liability upon persons, objects or transactions which are unequal must of necessity lead to discrimination. Ordinarily it may be predicated of unproductive agricultural land that it is incapable of being put to profitable agricultural use at any time. But that cannot be so predicated of an industrial establishment which has suffered loss in the accounting year, or even over several years successively. Such an establishment may suffer loss in one year and make profit in another. p.35 It was further observed Equal treatment of unequal objects, transactions or persons is number liable to be struck down as discriminatory unless there is simulta- neously absence of a rational relation to the object intended to be achieved by the law. p.36 The limitations of the application of the principle that discrimination would result if unequals are treated as equal, in the field of taxation, have been pointed out by this Court in Twyford Tea Co. Ltd. Anr. v. The State of Kerala Anr., 1970 3SCR 383, wherein tax at a uniform rate was imposed on plantations. Hidayatullah, CJ, speaking for the majority, while upholding the tax, has observed It may also be companyceded that the uniform tax falls more heavily on some plantations than on others because the profits ,ire widely discrepant. But does that involve a discrimination ? If the answer be in the affirmative hardly any tax direct or indirect would escape the same ensure for taxes touch purses of different lengths and the very uniformity of the tax and its equal treatment would become its undoing. The rich and the poor pay the same taxes irrespective of their incomes in many instances such as the sales- tax and the profession tax etc. pp. 389-390 It was further observed The burden is on a person companyplaining of discrimination. The burden is proving number possible inequality but hostile unequal treatment. This is more so when uniform taxes are levied. It is number proved to us how the different plantations can be said to be hostilely or unequally treated. A uniform wheel tax on cars does number take into account the value of the car, the mileage it runs, or in the case of taxis, the profits it makes and the miles per gallon it delivers. An ambassador taxi and a fiat tasi give different out turns in terms of money and mileage. Cinemas pay the same show fee. We do number take a doctrinaire view of equality. p.393-94 In the instant case, we find that the legislature has prescribed different rates of tax by classifying theatres into different classes, namely, air-conditioned, air-cooled, ordinary other than air-conditioned and air-cooled , permanent and semipermanent and touring and temporary. The theatres have further been categorized on the basis of the type of the local area in which they are situate. It cannot, therefore, be said that there has been numberattempt on the part of the legislature to classify the cinema theatres taking into companysideration the differentiating circum- stances for the purpose of imposition of tax. The grievance of the appellants is that the classification is number perfect. What they want is that there should have been further classification amongst the theatres falling in the same class on the basis of the location of the theatre is each local area. We do number think that such a companytention is well founded. In relation to cinema theatres it can be said that the attendance in the various cinema theatres within a local area would number be uniform and would depend on factors which may very from time to time. But this does number mean that cinema theatres in a particular category of local area will always be at a disadvantage so as to be prejudicely affected by a uniform rate as companypared to cinema theatres having a better location in the local area. It is, therefore, number possible to accept the companytention that the impugned provisions are violative of right to equality guaranteed under Article 14 of the Constitution on the basis that unequals are being treated equally. Another companytention that has been urged on behalf of the appellants is that while provision was made under sub- section 6 of section 5 for enhancement of the amount of tax in the event of increase in the amount of gross companylection capacity, there was numbercorresponding provision for reduction for the amount of tax in the event of reduction in the gross companylection capacity. The said provision for enhancement companytained in sub-section 6 of section 5 relates to the cases where the proprietor of a cinema theatre opts for payment of weekly companysolidated amount. Since the proprietor has the option to opt for the said scheme he cannot companyplain that the scheme suffers from inequality on account of absence of a companyresponding provision for reduction of amount of tax. In any event the said grievance has how been removed by the introduction of sub-section 6-A in section 5 by amendments, introduced in the Act by A.P. Act 23 of 1988 and A.P. Act 16 of 199 1. In the result, we find numbermerit in these appeals and the special leave petition and they are accordingly dismissed. The parties are, however, left to bear their own companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2847 of 1993. From the Judgment and Order dated 31.8.1990 of the Delhi High Court in C.W. 2617 of 1989. Yogeshwar Prasad, U.S Prasad, A.K. Lal Sinha, V.S. Pandey, Mrs. Nidhi Pandey and S.M. Tripathi for the Appellant. C. Mahajan, and S.N. Terdol for the Respondents. The Judgment of the Court was delivered by RAMASWAMY, J. Special leave granted. In response to the advertisement No. 33 dated August 19, 1989 the appellant had applied for recruitment to the post of Examiner of Personnel in the Department of Civil Aviation. He was unsuccessful in the selection. He later on challenged paras 3 i and 3 ii of the advertisement on the ground that the qualifications prescribed are discriminatory and were tailor made. He also companytends that in 1969, for the said post the qualifications prescribed were 1st Class British or Indian Navigator or a British Flight Navigator licence with number less than 100 hours of air experience. The method of recruitment was direct recruitment and the age prescribed was 45 years relaxable to Government Servants. He claims that he is having the first Class licence with 100 hours of air navigation experience. With a view to deprive him of the change, the offending rules have been amended in 1978 substituting 300 hours of instructional flying and experience of number less than 2500 hours as Flight Navigator with category A and endorsement to fly VIPs and VVIPs on all routes in I.A.F. air crafts or should hold or have held or Indian Flight Navigator Licence. According to him this rule was made with a view to deprive him of his chance. The Delhi High Court dismissed the writ petition summarily. To appreciate the companytention, it is necessary to read to rules. As per the 1969 rules which are statutory made under proviso to Art. 309 of the Constitution, the method of recruitment with qualification prescribed thereafter are thus Essential First Class British or Indian Navigators Licence with number less than 100 hours air experience. Desirable Degree in Mathematics or in Engineering. Experience of Goedetic Surveying.In 1978 clause A was amended and in its place Clauses A i and ii were brought on the rules which reads thus A i Experience of an minimum of 300 hours of instructional flying as qualified Navigation Instructor. Experience of number less than 2500 hours as Flight Navioator with category A and endorsement to fly VIPs VVIPs on all routes in A.F. aircraft. OR B i Should hold or have held an Indian Flight Navigators licence. Experience of 2000 hours as Flight Navigator on international Routes. Desirable Degree in Science with Physics and- Mathematics as subject of recognised University or equivalent. Experience as Navigation Instructor in a recognised Institution or in an Air Corporation. Commercial Pilots licence. Method of recruitment is direct recruitment through the Union Public Service Commission. When the candidates in required number did number apply for, the rules have been further amended in 1989 with the following modified qualifications Essential 1. 102 with Physics, Chemistry Mathematics 2 i should have held a senior Commercial Pilots Licence. should have flying experience of number less than 2500 hours on multiengine aircraft of which number less than 250 hours should be as pilot-in-command. OR should hold or should have held an Indian Flight Navigators licence. should have number less than 500 hours experience as Flight Navigator. Desirable Degree in Science with Physics and Mathematics of a recognised University or its equivalent. Experience as Navigation Instructor in a recognised institute Flying Club or in an Airline. Method of recruitment-by direct recruitment failing which by transfer or deputation including short term companytract . Age 50 years. It is number in dispute that these rules have been made by the President exercising the power under proviso to Art. 309 of the Constitution which read thus Recruitment and companyditions of service of persons serving the Union or a State- Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and companyditions of service of persons appointed, to public services and posts in companynection with the affairs of the Union or of any State Provided that it shall be companypetent for the President or such person as he may direct in the case of services and posts in companynection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in companynection with the affairs of the State to make rules regulating the recruitment, and the companyditions of service of persons appointed, to such service and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this Article, and any rules so made shall have effect subject to the provisions of any such Act. It would thus clear that the rules made by the President or authorised person under proviso to Art. 309 are subject to any law made by the Parliament and the power includes rules regulating the recruitment and the companyditions of service or post. They are statutory and legislative in character. The statutory rules thus made are subject to the law that may be made by the Parliament. In B.S Vadera v. Union of India Ors. reported in AIR 1969 SC 118, this Court held that the rules made under the proviso to Art. 309 of the Constitution shall have effect subject to the provisions of the Act i.e. if the appropriate legislature has passed an Act, In its absence the rules made by the president or by such person as he may direct are to have full effect. In The General Manager, Southern Railway v. Rangachari reported in 1962 2 SCR 586 at 596 another Constitution Bench held that equality of opportunity need number be companyfused with absolute equality as such. What is guaranteed is the equality of opportunity and numberhing more. Article 16 1 or 16 2 does number prohibit the prescription of reasonable rules for selection to any employment or appointment to any office or post. Any provision as to the qualifications for the employment or appointment to an office or post reasonably fixed and applicable to all citizens would certainly he companysistent with the doctrine of the equality of opportunity. In State of Mysore, Anr. v. P. Narasing Rao report in 1968 1 SCR 407 at 411 this Court held that the provisions of Art. 14 or Art. 16 do number exclude the laying down of selective tests, number do they preclude the Government from laying down qualifications for the post in question. Such qualifications need number be only technical but they can also be general qualifications relating to the suitability of the candidate for such service as such. The same was the view in another Constitution Bench decision reported in The State of Jamu and Kashmir v. Triloki Nath Khosa Ors. AIR 1974 SC 1. In State of Orissa Ant-. v. N.N. Swamy Ors. reported in 1977 1 2 SCC 508 in paragraph 18, this Court held that the eligibility must number be companyfused with the suitability of the candidate for appointment. Thus it would be clear that, in the exercise of the rule making power, the president or authorised person is entitled to prescribe method of recruitment, qualifications both educational as well as technical for appointment or companyditions of service to an office or a post under the State. The rules thus having been made in exercise of the power under proviso to Art. 309 of the Constitution, being Statutory, cannot he impeached on the ground that the authorities have prescribed tailor made qualifications to suit the stated individuals whose names have been mentioned in the appeal. Suffice to state that it is settled law that numbermotives can be attributed to the Legislature in making the law. The rules prescribed qualifications for eligibility and the suitability of the appellant would be tested by the Union Public Service Commission. It is next companytended that several persons whose names have been companyiously mentioned in the appeal were number qualified to hold the post of examiner and they were number capable even to set the test papers to the examiners number capable to evaluate the papers. We are number called upon to decide the legality of their appointments number their credentials in this appeal as that question does number arise number are they before the companyrt. It is next companytended by Mr. Yogeshwar prasad, the learned Senior companynsel that on account of inefficiency in the pilots operational Capability repeatedly air accidents have been occurring endangering the lives of innocent travellers and this Court should regulate the prescription of higher qualifications and strict standard to the navigators or to the pilots be instead on. We are afraid that we cannot enter into number undertake the responsibility in that behalf. It is for the expert body and this Court does number have the assistance of experts. Moreover it is for the rule making authority or for the legislature to regulate the method of recruitment, prescribe qualifications etc. It is open to the President or the authorized person to undertake such exercise and that necessary tests should be companyducted by U.P.S.C. before giving, the certificates to them. This is number the province of this Court to trench into and prescribe qualifications in particular when the matters are of the technical nature. It is stated in the companynter affidavit that due to advancement of technology of the flight aviations the navigators are numberlonger required and therefore they are number companying in large number. Despite the repeated advertisements numbersuitable candidate is companying forward, We do number go into fault aspect also and it is number necessary for the purpose of this case. Suffice to state that pursuant to another advertisement made in July 1992, the appellant is stated to have admittedly applied for and appeared before the P.S.C. for selection and that he is awaiting the result thereof.Under these circumstances.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1452 of 1987. From the Judgment and Order dated 10.7.1986 of the Kamataka High Court in I.T.R.C. No. 198 of 1987. WITH A. Nos. 4462/89, 1822, 1902, 1465/87, 675, 658, 4461/89, 6093/90, 6204/ 90, 6092. and 6092 A of 1990. Salve, P.H. Parekh, Ms. Meenakshi Grover, R. Nariman, Ms. Gill and Ms. Simi Kr. for the Appellants. B. Ahuja, Ranbir Chandra and Ms. A. Subhasini for the Respondent. The Judgment of the Court was delivered by P. JEEVAN REDDY J. These appeals are preferred against the judgment of the Karnataka High Court answering the question referred to it, at the instance of the revenue, in favour of the revenue and against the assessee. The question referred under section 256 of the Income Tax Act, 196 1, read as follows Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the sum of Rs. 1, 79, 742 companyld number be disallowed under section 40 c of the Income Tax Act, 1961. The above question related to Assessment Year 1974-75. The question referred for A.Y. 1975-76 was identical except in the matter of amount . Since the facts in all the appeals are identical it would be sufficient to numberice the facts in C.A. Nos. 6092 and 6092A/90 Prakash Beedies P Lid. v. Commr. of Income Tax. Karnataka, Bangalore . Prior to 15.7.1992, a partnership firm called K.M. Anand Prabhu Sons, Mangalore, companysisting of three partners K.M. Vishnudas Prabhu, K.M. Ramdas Prabhu and K.M. Shankar Prabhu was engaged inter alia in the business of manufacturing and sale of beedies under the brand name Mangalore Prakash Beedies. On May 20, 1972 a Private limited companypany called Prakash Beedies Limited the assessee-appellant herein , was incorporated with its registered off-ice at Manoalore. One of its objects was to take over business of the aforesaid firm. Under an agreement dated July 15, 1972 between the firm and the companypany, the firm sold its rights and assets to the companypany on the terms and companyditions set out therein. Clause 4 a of the agreement, which alone is material for the purposes of these appeals reads For the use of the trade name the Company shall pay royalty to the Vendor at the rate of 10ps. for every thousand beedies sold by the Company by using the trade name of the Vendor. The royalty shall be worked out at the end of each quarter ending on March, June, September and December, on the sales made during each quarter. The royalty fixed hereby shall number be varied for a period of one year and may be reviewed and or revised thereafter wards from time to time. The assessee was making payments to the firm every year on account of royalty in terms of said clause. The three partners aforesaid of the firm were also the directors of the assessee- companypany. For the assessment years 1974-75 and 1975-76, the assessee claimed deduction of the amount paid by it to the firm on account of royalty in terms of clause 4 a of the agreement. The amounts paid during the accounting years relevant to the said assessment years were Rs. 3, 16, 526 and Rs. 3, 95, 742 respectively. The I.T.O. allowed the deductions as claimed. In exercise of the powers companyferred on him by Section 263, the Commissioner of Income Tax initiated suo moto proceedings for revising the said assessments in so far as the aforesaid deductions were companycerned. After hearing the assessee, he passed orders on September 16, 1976 whereunder he disallowed payments to the firm over and above the ceiling prescribed in Section 40 c . The assessee preferred appeals to the Tribunal against the orders of the I.T.O, The appeals were allowed and the orders of the I.T.O. restored. On reference, the High Court answered to question in the negative i.e., in favour of the revenue and against the assessee, on the following reasoning the three directors of the assessee companypany were also the partners in the firm to which royalty payments were made. In law, a firm has numberseparate legal existence it is number a juristic person or a distinct legal entity. It is merely a companylection or association of the individuals for carrying on a business. Merely because the firm is an assessable entity under the Income Tax Act it does number follow that it is a juristic or legal entity. It must, therefore, be held that the payments made to the firm are in reality payments made to the directors. Such payments clearly attract and fall within the mischief of Section 40 c . The Commissioner was right in saying so and the opinion of the Tribunal to the companytrary is unsustainable in law. In these appeals, S Shri Harish N.Salve and Rohinton Nariman assailed the companyrectness of the view taken by the High Court. They submitted firstly that the payments were made number to the directors of the assessee but to a firm which was a separate entity. A payment to a firm is number ipso facto a payment to the partners, directly or indirectly. In a firm there may be other partners besides the directors of the assessee-company. It may also happen that the firm has numberincome to distribute because of the losses incurred by it which are set-off against the income so received. The High Court was in error in holding that payment to a firm is a payment to the partners. Assuming that a partnership firm is number a separate juristic entity distinct from its partners, even so the payments were made to the said three persons number in their capacity as directors qua directors but in companysideration of a valuable right parted by them in favour of the assessee-company. Such payments do number and cannot fall within the mischief of Section4O c . Section 40 c was never intended to take in such payments. A companypany may take on lease the house of its directors for its legitimate business purposes and pay rent which is reasonable having regard to the market companyditions, or it may pay even less than the market rate of rent. Whether the rent paid by the companypany to its director in such a case falls within Section 40 c , ask the companynsel. Another illustration given by the companynsel is where a director supplies raw material to the assessee-company for a price which is the appropriate market price. Would such payment also fall under section 40 c , they ask. The Budget speech of the Finance Minister in the Parliament, while introducing the said provision, is relied upon in support of their companytention. It is also argued that the words remuneration, benefit or amenity occurring in Section 40 c must be read having regard to the companytext in which they occur applying the principle NOSCITORA SPCOOS recognition of associated words . If so read, the payments in question can never fall within the ambit of the said words. Shri Ahuja, the learned companynsel for the Revenue justified the reasoning and approach of the High Court having regard to the clear language employed in clause c . The genuineness or validity of the agreement between the assessee-company and the firm is number disputed. The factum of payments made on account of royalty in terms of clause 4 a of the said agreement is also number disputed. It is also number disputed that in the beedi trade, brand name carries significant business value. It is necessary to keep this factual companytext in mind while examining the question at issue. Section 40 c read as follows during the relevant assessment years Notwithstanding anything to the companytrary in sections 30 to 39, the following amounts shall number be deducted in companyputing the income charge able under the head profits and gains of business or profession, a b c in the case of any companypany- any expenditure which results directly or indirectly in the provision of any remuneration of benefit or amenity to director or to a person who has a substantial interest in the companypany or to a relative of the director or of such person, as the case may be, any expenditure or allowance in respect of any assets of the companypany used by any person referred to in sub-clause i either wholly or partly for his own purposes of benefit, if in the opinion of the Income-tax Officer any such expenditure or allowance as is mentioned in sub-clause i and ii is excessive or unreasonable having regard to the legitimate business needs of the companypany and the benefit derived by or accruing to it therefrom, so, however, that the deduction in respect of the aggregate of such expenditure and allowance in respect of any one person referred to in sub-clause i shall, in numbercase, exceed- A where such expenditure or allowance relates to a period exceeding eleven months companyprised in the previous year, the amount of seventy-two thousand rupees B where such expenditure of allowance relates to a period number exceeding eleven months companyprised in the previous year, an amount calculated at the rate of six thousand rupees for each month or part thereof companyprised in that period Provided that in case where such person is also and employee of the companypany for any period companyprised in the previous year, expenditure of the nature referred to in clauses i , ii , iii and iv of the second proviso to clause a of sub-section 5 of section 40A shall number be taken into account for the purposes of sub-clause A or subclause B , as the case may be iii Explanation.-The provisions of this clause shall apply numberwithstanding that any amount number to be allowed under this clause is included in the total income of any person referred to in sub-clause i The Budget speech of the Finance Minister, in so far as it mentions the reasons for introduction of clause c of Section 40, reads as follows I am firmly of the view that the fiscal instrument must be deployed to discourage payment of high salaries and remunerations which go ill with the numberms of egalitarian society. I accordingly propose to impose a calling on the remuneration of companypany employees which would be deductible in the companyputation of taxable profits. The ceiling is being set at Rs. 5,000 per month. Together with the existing ceiling of Rs. 1,000 per month in the case of perquisites, the allowable overall ceiling on remuneration and perquisites, for purposes of taxation, will be at Rs. 6,000 per month The object behind the provision undoubtedly was to discourage and disallow payment of high salaries and remunerations which go ill with the numberms of egalitarian society. The provision was, of companyrse, number companyfined to the directors. It took in relatives of directors, persons having substantial interest in the companypany and their relatives. The clause vested in the I.T.O. the power to determine whether any such expenditure or allowances as is mentioned in the said clause was excessive or unreasonable having regard to the legitimate business needs of the companypany and the benefit derived by or accruing to it therefrom. In addition to it, a ceiling was also prescribed beyond which such expenditure or allowance companyld number go in any event. At this juncture, it would be appropriate to numberice the provision companytained in sub-section 2 of Sec 40A. Clause, A provides that where the assessee incurs any expenditure in respect of which payment has been made or is to be made to any person referred to in clause b of the sub-section, and the Income-tax Officer is of the opinion that such expenditure is excessive or unreasonable having regard to the fair market value of the goods, services or facilities for which the payment is made or the legitimate needs of the business or profession of the assessee or the benefit derived by or accruing to him therefrom, so much of the expenditure as is so companysidered by him to be excessive or unreasonable shall number be allowed as a deduction. Clause b mentions the categories of persons to whom the provision in clause a applies. It includes directors of the companypany and their relatives among others. Clause b also takes in any payment to any companypany, firm, association of persons or Hindu undivided family of which a director, partner or member, as the case may be, has substantial, interest in the business or profession of the assessee. In short, the net is cast very wide to ensure that excessive or unreasonable payments are number made to the persons in companytrol of the affairs of the assessee in the name of paying for the goods, services and facilities rendered, supplied or extended by them, as the case may be. That the payments made by the assessee-company to the firm on account of royalty in terms of clause 4 a of the agreement fall within the meaning of the expression expenditure in sub-clause i of clause c is number disputed. The observations in CIT, Bombay. v. M s. Indian Engineering and Commercial Corporation Private Uinited Civil Appeal Nos. 1583 and 1584 NT of 1977 decided on 13.4.1993 by us-reported in 1993 2 J.T. 683 do number say otherwise. That case arose under Section 40 A 5 . The payments in question were made to the directors by way of companymission on sales. The question was whether the said payments fell within sub-clause ii of clause a of sub- section 5 of section 40 A . It was held that they did number. While holding so it was observed that it is difficult to say that payment of certain cash amount by way of companymission on sales, directly to an employee, can be said to fall within the words where the assessee incurs any expenditure which results directly or indirectly. The said observations were made in response to the Revenues argument that the said payment companystituted perquisites within the meaning of sub-clause ii of clause a of Section 40 A 5 . The observations are clearly companyfined to the said sub- clause and have numberrelevance to any other provision in the Act. The observations cannot be read dissociated from their companytext. Coming back to the provisions of Section 4O c and the facts of the case before us the only question is whether the royalty payments to the firm fell within clause c . We assume for the purpose of this argument that in this case, payments to firm were payments to partners. Even so, we think that the said payments did number fall within clause C . The payments were made in companysideration of a valuable right parted by the partners directors of the assessee companypany in favour of the assessee. SO long a,, the agreement whereunder the said payments were made is number held to be a mere device or a mere screen, the said payments cannot be treated as payments made to the directors as directors qua directors . The payments were made by way of companysideration for allowing the assessee to use a valuable right belonging to them viz., the brand name. Such a payment may be liable to be scrutinised under subsection 2 of Section 40 A , but it certainly did number fall within the four companyners of Section 40 c . In T. T Ltd. v. LTO., Bangalore 121 I.T.R. 55 1, a Bench of Karnataka High Court companyprising D.M. Chandrashekhar, CJ. and E.S. Venkataramiah,J. has taken a view which accords with the one taken by us. Speaking for the Bench, E.S. Venkataramiah, J. as he then was observed A close reading of the above provision shows that s. 40 c refers to an expenditure in- curred by making periodical payments to person mentioned in that clause apparently for any personal service that may be rendered by him. It cannot have any reference to payments made by the assessee for all kinds of services or facilities referred to in s. 4OA 2 a . It is argued that the proviso thereto suggests that any expenditure incurred for any kind of service which is referred to in the main part of s. 40A 2 a and the expenditure referred to in s. 40 c belong to the same category. This companytention is number companyrect. The expression services in s. 40A 2 a is an expression of wider import If the remuneration, benefit or amenity referred to in s. 40 c is treated as the same as what is paid in return for the goods, services or facilities then irrespective of the fair market value of the goods, services and facilities provided by a person who may be a director or a person who has a substantial interest in the companypany or a relative of the director or of such person, as the case may be, only a maximum of Rs. 72,000 can be allowed to be deducted in companyputing the income of the companypany in any one year. We do number think that Parliament ever intended that such a result should follow. The goods, services and facilities referred to in s. 40A 2 a are those which have a market value and which are companymercial in character. Many of the services and facilities referred to above are those which are numberadays provided by independent organisations. The said decision has been followed by the Punjab and Haryana High Court in Commissioner of Income Tax, Patiala v. Avon Cycles P Ltd. 126 I.T.R. 448, The Calcutta High Court has also taken a similar view in India Jute Co. Ltd v. Commr of Income-Tax 178 ITR 649. Mr. Ahuja, learned companynsel for the Revenue submitted that the argument of the assessee that only the payments made to directors as directors fall within clause c and number the other payments, becomes inapt when the payments are made to the relative,,, of the directors or to persons holding substantial interest in the assessee companypany or their relatives. The ceilinG prescribed in clause c cannot also be applied to such persons-says the companynsel. The answer perhaps lies in the clause itself-in the power vested in the T.O. to determine whether any expenditure or allowance is excessive or unreasonable having regard to the legitimate business needs of the companypany and the benefit derived by the assessee or accruing therefrom. Any payment to a relative of a director or other persons mentioned in clause c will necessarily be examined applying the above test and if it is found that they are unwarranted, unreasonable or excessive, they will be disallowed. Since such a situation does number arise herein, we need number pursue the argument further. For the above reasons, we are of the opinion that the judgment under appeal cannot be sustained. It must he held that the payments in question did number fall within section 40 c . Accordingly, the appeals are allowed, the judgment of the High Court is set aside and the question referred to the High Court is answered in the affirmative, i.e., in favour of the assessee and against the revenue.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2198 of 1986. From the Judgment and order dated 17.12.1985 of the Punjab and Haryana High Court in R.S.A No. 1155 of 1977. M. Ashri for the Appellant. Ms. Kawaljit Kochar for J.D. Jain for the Respondents. The Judgment of the Court was delivered by BHARUCHA,J. This appeal by special leave challenges the judgment and order of the Punjab Harvana High Court dismissing the appeal filed before it by the appellant. The suit relates to 9 Kanals 13 Marlas of land at village Qayampur. The said land was owned by Rajinder Singh and Baldev Singh, the respondents, and was sold while they were still minors by their mother Gurkirpal, acting as their guardian, to the appellant under a registered sale deed dated 30th July, 1964. Upon attaining majority the respondents sued the appellant for possession of the said land on the ground that the sale thereof having been made without the permission of the companyrt was void. The appellant in his written statement and at the time of hearing of the suit relied heavily upon the fact that the sale deed had been attested by the father of the respondents and that the sale should. therefore, be deemed to have been a sale by the legal guardian of the respondents. It was also companytended that the sale had been for legal necessity and the benefit of the respondents. The suit, it was also alleged, was barred by limitation because, the sale being voidable and number void, it had number been brought within three years of each of the respondents attaining majority. The trial companyrt framed appropriate issues and came to the companyclusion that it had number been proved that the sale was for legal necessity or for the benefit of the respondents that the sale by the respondents mother without the permission of the companyrt was void and that the sale was void and number voidable and the suit was, therefore, in time. The appeals filed by the appellant before the Additional District Judge. Ambala and the High Court failed. Learned companynsel for the appellant placed great reliance upon the fact that the sale deed had been attested by the father of the respondents and submitted that the sale deed should, therefore, be taken to have been entered into by the natural guardian of the respondents for legal necessity and their benefit. Section 8 of the Hindu Minority and Guardianship Act sets out the powers of the natural guardian of a Hindu minor. The natural guardian of a Hindu Minor has power, subject to the provisions of section 8, to do all acts which are necessary or reasonable and proper for the benefit of the minor or his estate. The natural guardian, however, may number without the previous permission of the companyrt sell any part of the immovable property of the minor. Any disposal of immovable property which is number necessary or reasonable and proper for the benefit of the minor or is without the previous permission of the companyrt is voidable at the instance of the minor. In the instant case, there, is, as found by the trial companyrt and affirmed in appeal, numberevidence beyond the bare word of the appellant that the sale deed had been made for the benefit of the minor respondents and his evidence had been eroded in cross- examination so that there was numberreliable evidence on record to show that the alienation in dispute had been made for the legal necessity or for the benefit of the plaintiffs. That the sale was effected without the permission of the companyrt is number dispute. The sale is, therefore, in any event, voidable. The question is whether, in the circumstances of the case, it may be said that the sale was effected by the father and natural guardian of the respondents because he had attested the sale deed executed by the mother of the respondents. In this behalf our attention was invited to this Courts judgment in Jijabai Vithalrao Gajre vs. Pathankhan and ors., AIR 1971 S.C. 315. This was a case in which it was held that the position in Hindu law was that when the father was alive he was the natural guardian and it was only after him that the mother became the natural guardian. Where the father was alive but had fallen out with the mother of the minor child and was living separately for several years without taking any interest in the affairs of the minor, who was in the keeping and care of the mother, it was held that, in the peculiar circumstances, the father should be treated as if numberexistent and, therefore, the mother companyld be companysidered as the natural guardian of the minors person as well as property, having power to bind the minor by dealing with her immovable property. In the present case, there is numberevidence to show that the father of the respondents was number taking any interest in their affairs or that they were in keeping and care of the mother to the exclusion of the father. In fact, his attestation of the sale deed shows that he was very much existent and in the picture. If he was, then the sale by the mother, numberwith standing the fact that the father attested it, cannot be held to be a sale by the father and natural guardian satisfying the requirements of section 8. The Provisions of section 8 are devised to fully protect the property of a minor, even from the depredations of his parents. Section 8 empowers only the legal guardian to alienate a minor s immovable property provided it is for the necessity or benefit of the minor or his estate and it further requires that such alienation shall be effected after the permission of the companyrt has been obtained. It is difficult, therefore, to hold that the sale was voidable, number void, by reason of the fact that the mother of the minor respondents signed the sale deed and the father attested it.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2221 of 1993. From the Judgment and Order dated.5.5. 1993 of the Madhya Pradesh High Court in M.P. No. 4420 of 1991. Harish N. Salve and L.R. Singh for the Appellant. Anoop Choudhary, A.K. Sanghi, S.V. Deshpande and S. K. Agnihotri for the Respondents. The Judgment of the Court was delivered by Mohan, J, Leave granted in SLP filed by Indian Medical Council, Jabalpur. All these appeals are dealt with under a companymon judgment since they arise out of the same judgment passed in Misc. Petition No.4420 of 1991 by the Madhya Pradesh High Court, Jabalpur Bench. One Dr.Nelson ,father of respondent1 was serving in Madhya Pradesh State Public Health in the Department of Surgery in the Medical College at Jabalpur. His wife, Dr. Mrs. Shobha Nelson was also working as a Lecturer in the Department of Obstetrics and Gynecology in Medical College in a purely temporary capacity. Dr.Nelson applied for foreign assignment.He was selected for the same. Therefore. a request was made by the Government of India Department of Personnel and Administrative Reforms vide its letter dated 2nd of January. 1975 requesting the State Government to spare the services of Dr . S.K. Nelson for foreign assignment with Zanzibar Government. The Under Secretary to the Government of Madhya Pradesh, Department of Public Health and Family Planning replied on 15.4.1975 that it was number possible for the State Government to spare his services. However, Dr. Nelson proceeded on two months vacation with effect from 1.5.75.He wrote a letter to the Dean of Medical College Jabalpur that he was proceeding, on long leave owing, to unavoidable family circumstances. Even after the expiry of the period of leave he did number rejoin the post. His request for further extension of leave was rejected. Notwithstanding the same Dr. Nelson and his wife proceeded to Tanzania and the first respondent, Silas Nelson, also accompanied them. It also requires to be mentioned in passing that a request was made to the Government of madhya Pradesh to spare the services of Dr. Shobha Nelson. It was pointed out by tile State Government that she being A temporary servant she had numberlien and she will have to resign the State service before joining her duties in Zanzibar. She also absented unauthorisedly and proceeded to Tanzania along with her husband. The first respondent claimed to have passed G.C.E. O level as well as A level examinations from the University of London companyducted by the Education Council of the Government at Dar-es-Salam in Tanzania. He also claimed that he had obtained credits in A level in three subjects i.e. Biology, Physics and Chemistry and O level in six subjects i.e. Biology, Chemistry, English language. English Literature, Mathematics and Physics. On this basis he claimed that he was entitled to admission in any Medical College in India. According to him these examinations are companysidered to be equivalent qualifying examinations and pre- requisite for admission to any Medical College. It was also stated that Rani Durgawati University of Jabalpur had given an equivalence certificate. He obtained admission in Muhmbili Medical College in the Faculty of Medicine. which is affiliated to the University of Dar-es-Salam, in the year 1989. lie had companypleted one year at the same companylege and University. Thereafter he was pursuing his study in the second year. Having regard to the fact that he had studied the subjects in Anatomy, Physiology, Biochemistry, Preventive and Social Medicine including, Behavioural Science and Biostatistics, Medical Psychology and Developmental Studies and Medical Surgery, he had undergone a wider companyrse. Therefore, according to him, he possesses the eligibility criteria for admission to the MBBS Degree Course at Jabalpur. A request was made by the father of the first respondent to numberinate the first respondent to MBBS Course directly under Central Government quota. This request related number only to the first respondent but also his sister. However, the Central Government advised Dr. Nelson to approach the Medical Council oflndia and the companycerned University in jabalpur seeking their companycurrence to the migration of his two children from the University of Dar-es-Salam. Tanzania to Medical College in jabalpur. On 20th December, 1989, Dr. nelson approached the appellant, Medical Council of India hereinafter referred to as the Council for grant of numberobjection to the transfer. This request was turned down on 12.1.90 as migration was number permissible under the Rules. The position was further made clear by the letter of the appellant dated 28.12.90. Aggrieved by this the first respondent and his sister Kumari Divya Nelson filed Writ Petition Misc. Petition No. 2535 of 1990 before the Madhya pradesh high Court at Jabalpur. The prayer was for a writ of mandamus to direct the respondents to grant admission to them to the 2nd year of MBBS Degree Course at Medical College jabalpur. It was companytended that the Council had number authority to object or refuse the issue of numberobjection certificate since its primary function is to prescribe minimum standards of medical education. It is the University alone which should be companycerned about the admission. The High Court by its judgment dated 12.7.91 allowed the writ petition. It directed the appellant and other authorities to companysider the case of respondent 1 and his sister within a period of two months for their admission in the Medical College, jabalpur in the light of clause E of the mandatory recommendations approved under Section 33 of the Indian Medical Council Act, 1956. It was also held that though the Council had companysidered the case of the candidates yet it had number looked into the individual merits regarding their eligibility for transfer to Medical College,jabalpur which affiliated to Rani Durgawati Vishwa vidyalaya, jabalpur. Besides teh impugned letter of the companyncil does number show any application of mind as it is number speaking order. In companyplete with the above directions the Executive Committee of the appellant Council reconsidered the case on 20.8.91. The question was whether the migration of the respondent on individual merit to Medical College. jabalpur under clause v e of the Migration Rules was permissible. It was companycluded that the migration companyld number be allowed since the ground were number sufficient for such migration. It was also of the view that the facts stated for companysidering the individual case on merits were number relevant. What is important to be companysidered is the companyrse of study the student had already undergone vis-a-vis the companyrse being taught in the Medical College in Which the migration is sought. The candidate had number also finished enough materials to make companyparison with the companyrse of study companyducted in medical College at jabalpur. For these reasons the request for migration was rejected. The same was reiterated by a letter dated 4.1.92. After this, a review petition was filed to recall the order dated 12.7.91 of the High Court. However the review petition was dismissed by the High Court. An application for companytempt was also dismissed. There upon Misc, Petition No. 4420 of 1991 came to be filed seeking admission in the 2nd year or the 1st professional M.B.B.S. Course at Medical College, Jabalpur on the same grounds as were alleged previously. direction was issued on 23.12.1991 to give provisional admission. After admission of the writ petition the same order was companytinued. Though an application was preferred by the respondents 2 to 4 to have the order vacated on the ground that migration from an unrecognized Medical College to a recognised Medical College was number permissible, the same was dismissed. Some interesting development took place during this stage. The candidates did number produce the required document. Hence provisional admission was number granted to them by the respondents 2 to 4. That led to the filing of Interlocutory Application No. 2805 of 1992 for further direction. Respondents 2 to 4 also filed an application for direction on 26.3.92 inter alia pointing out that before grant of provisional admission, the writ petitioners were required to submit proof of their having passed 1st year companyrse at Tanzania. In the absence of such proof the admission was impossible. Further in which year of the MBBS companyrse the first respondent was to be admitted, was number free from difficulty. it was averred that even without passing the first year from the university of Dar-es-Salam the claim is made for admission to the second year. This is numberhing but fraud the High Court strangely permitted the writ petitioner. Kumari Divya Nelson to withdraw herself from the petition and it directed respondent 1 alone companyld prosecute his studies. The authorities were directed to grant provisional admission his filing necessary forms and depositing admission fees without insisting on the production of any other certificate or testimonials or syllabus of Dar-es- Salam University. For number-compliance with this direction a companytempt application was taken but by the first respondent. On peril of companytempt the Dean Respondent 4 had number other option but to companyply with the order of provisional admission. Against this order directing provisional admission without insisting on the production of any other documents SLP C No. 10498 of 1992 was preferred.Leave was granted on 7.9.92 by this companyrt staying the operation of the order dated 18.5.92 of the High Court. This Court directed that the interim order well subsist till the disposal of the writ petition before the High Court and requested the High Court to dispose of the writ petition of the respondent I expeditiously. By the impugned judgment dated 5th March, 1993 the writ petition was allowed The resolution dated 20th August, 1991 refusing to accede to the request of the writ petitioner respondent 1 for migration was quashed holding that there was numberapplication of mind by the Council. lt is under these circumstances these appeals by special leave to appeal have companye to be preferred. Mr. harish N. Salve, learned companynsel for the appellant would submit the following grounds attacking the impugned judgment The High companyrt erred in directing admission to respondent I in recognised medical companylege in India from an unrecognized companylege by way of migration transfer. WI the more so. when such impermissibility has been recognised by this Court in Medical Council of India, New Delhi v. Rajendra S. Sankpal and Ors. etc. C. A Nos. 3-4 of 1991 dated 21.10.92 and order dated 6.12.1990 of this Court passed in Medical Council of India v. Ms. Sunita Anant Chavan Ors. ANos. 2-7 in Transfer Petition Civil Nos. 230-235 of 1989 . The High Court misread Regulation V. Under that Regulation migration is allowed from a recognised medical companylege to another recognised companylege and that too within three moths after passing of the first professional examination. In so far as the first respondent has neither undergone study in a medical companylege recognised by the Council number has he passed the first professional examination, he companyld number he admitted to the second year. The first respondent failed in the subject of Anatomy which is one of the papers taught in the first year at Dar-es- Salam University. Under the Examination Regulation of the said University he was required to sit in the supplementary examination in the failed subject before the beginning of the next academic year. Thus he was required to clear the said paper within six weeks. Should he fails in the supplementary examination he ceases to be a student of the College University. In so far as the first respondent did number take the supplementary examination he ceased to be a student of Dar-es-Salam University. Therefore, the question of migration companyld number arise at all. The first yen companyrse of Dar-es-SalamlJniversitv is number equivalent to the first phase of MBBS Examination in India. Equivalence has to be decided by only an expert body, that too, on technical and academic matters. It is number in the domain of assessment or evaluation by the Court. The High Court should number have embarked on the determination of equivalence on the basis of sketchy materials placed before it. The High Court erred in relying on. Minakshi Malik, v. University of Delhi, AIR 1989 SC 1568. There, the candidate was number, in any matter, ineligible while here, the first respondent is ineligible. The High Court erred overlooking that an administrative authority like the appellant is number required to pass reasoned orders. The decree awarded by Dar-es-Salam University is number recognised and Is number included under any of the Schedules of the Medical Council of India Act, 1956. Therefore, there was numberoccasion for the appellant to decide the equivalence. Should the first respondent be anxious he should have placed all the materials. In opposition to this, learned companynsel for the respondents, argues that the Council has taken a self-contradictory stand. In one breath, it will companytend that there are numbermaterials to decide the equivalence and in the other breath it would say it is number equivalence. Under these circumstances, in view of the cryptic order passed, the High Court itself decided finding that the Council had number applied its mind. The High Court was satisfied on the basis of documents there is equivalence. The High Court is well entitled to do so. More so, having regard to the ruling of Minakshi Maliks case supra Equity also must weigh in favour of the first respondent. In any event, the first respondent had passed his pre-Medical test successfully in the year 199 1. He also belong s to scheduled tribe. Therefore, on the basis of these two documents his candidature companyld be companysidered for admission to first year MBBS Course for the ensuing academic year of 1993-94 as otherwise, the career of a young man would be companypletely ruined. The factual position with regard to study of the first respondent in Dar-es-Salam University requires to be carefully analysed. The claim of the first respondent is that he has passed G.C.E. O level as well as A level examinations from the University of London companyducted by the Education Council of the Government at Dar-es-Salam in Tanzania. He claims to have obtained credits in A level in the following three subjects Biology, Physics and Chemistry In O level he claim., to have obtained credits in the following six subjects Biology, Chemistry, English Language, English Literature, Mathematics and Physics On this basis, he claims admission to any Medical College in India as these are companysidered to be equivalent qualifying examinations and prerequisite for admission to any Medical College. It is claimed on behalf first respondent at Rani Durgawati University of Jabalpur has given an equivalence certificate. That is extracted below With reference to your above cited letter, it is to inform you that students have passed in five subjects at least at the G.C.E. Ordinary Level and two subjects at the Advanced Level from University of London, are treated as having successfully companypleted the 12 year Pre-University Higher Secondary in India. Hence, if your son Shri Silas Supragya Nelson has passed above examination then he may appear in Pre Medical test examination as desired by you. According to first respondent, he was admitted in Muhmbili Medical College in the Faculty of Medicine which is affiliated to the University of Dar-es-Salam in the year 1989 and has companypleted one year at the same College and University. In the First year he had studied subjects in Anatomy, Physiology Biochemistry, Preventive and Social Medicine which includes Behavioural Science and Bio- statistics, Medical. Psychology and Development Studies Medical Surgery whereas at Rani Durgawati University, the subjects taught in the first year are Anatomy, Physiology, and Biochemistry. Thus the companyrses followed at Dar-es-Salam University are much wider. It was further claimed that his companyrse in the said Medical College is equivalent to first year companyrse of MBBS Degree awarded by Rani Durgawati University, Jabalpur and, therefore, he possesses the eligibility criteria for admission to the MBBS Degree Course at Jabalpur. On the said basis migration is sought. Dar-es-Salam University is number recognised by the Medical Council of India. Therefore, front all unrecognised institution admission is sought to a recognised institution. With the object of maintaining and regulating, standards of medical education in the companyntry, the Parliament enacted the Indian Medical Council Act, 1956. Under Section 6 of the Act. the Medical Council of India has been incorporated, which is a body companyporate having a perpetual succession and a companymon seal Section 12 of the Act makes provisions for recognition of medical qualifications granted by medical institutions in companyntries with which there is a scheme of reciprocity. Under this section, the schedules are given providing list of recognised medical institutions qualifications. The first schedule gives list of recognised medical qualifications granted by universities medical institutions in India whereas schedule second gives the list of recognised medical qualifications granted by medical institutions outside India. University of Dar-es-Salam its medical institution is number included in the second schedule and therefore the qualifications imparted by that institution are number recognised. That apart, section 14 of the Act makes provisions for recognition of medical qualifications granted by companyntries in which there is number scheme of reciprocity. The Central Government has number companysidered Dar-es-Salam University for such recognition. It was in this companytext the following order came to be passed by the appellant The Director, Medical Education, Madhya Pradesh, Bhopal Subject- Migration of Silas Nelson and Divya Nelson from Dar-es-Salam Medical College, Tanzania to Medical Collage, Jabalpur. Sir, With reference to your letter No. 6151/DME IV dated 12.5.1990 I am to state that the matter regarding, Migration of Silas Nelson and Divya Nelson from Dar-es-Salam Medical College, Tanzania to Medical College,Jabalpur was duly placed before the Executive Committee of this Council at its meeting held on 20th August, 1991 for companysideration. The Committed decided as under The Executive Committee companysidered the matter with regard to the migration of the above candidates on individual merit to Medical College Jabalpur under Clause V e of the migration rules and did number allow these migration since the grounds are number sufficient for migration and the facts stated in the individual cases are number very relevant for grant of permission for migration. For companysidering any such cause of migration, it is important to companysider the cause of study the student has already undergone vis-a-vis the companyrse being taught in the Medical Colleges in which the migration is sought. Further it is observed that the candidates seeking their migration have also brought numberrecords to show the companyrse of study being companyducted at their medical companylege for making companyparison with the study being companyducted in Medical College, Jabalpur. Hence the applications for migration of the above candidates are rejected. Your faithfully, Mrs. M. Sachdeva Off. Secretary. Concerning migration the rule also is to the effect that the same can be allowed by the University companycerned within three months after the passing of the first professional examination. Then, the question of equivalence arises. The equivalence came to be decided in the following manner Reference-Letter dated 28.12.1991 of Dy. Registrar General R.D. University, Jabalpur. Regarding letter of ku.Divya Nelson and 2/ Silas Nelson to the University. I have gone through prospectus of University of Dar-es-Salam 1990-90 For M.D. degree which is equivalent to M.B.B.S. of Universities abroad as per letter No. H Q G.N/17862 dated 2nd May, 1990 of Director of Training and Occupational Health Service, attached in the file . For examination at the end of first year in Dar-es-Salam University the subjects are-- Anatomy Histology - Behavioural Sciences Only one Biochemistry - Year study. Physiology Development studies Where in Indian Universities the First MBBS Course which is of 18 months the subjects examined are As premedical Council of India Anatomy Physiology - one and half, Biochemistry - Year study As the detailed syllabus of the 5 subjects taught in one year at Dar-es-Salam University is number given in the Prospectus, it is difficult to know whether the companyrse is equal as only three subjects are taught in Indian University for one and half years indicating that these subjects are taught in more detail here in our University. However, in general the subjects taught there in first year included Anatomy, Physiology and Biochemistry along with other two subjects which are also the subjects of first M.B.B.S. one and half years companyrse here also. For mote clarification, the Medical Council of India may be companysulted because they are the main authority in India in this respect. Dean, Faculty of Medicine of our University was also companysulted in this matter/ sd - Protessor Head. Dept. of Biochemistry Medical College Chairman Board of Studies for Anatomy, Physiology Biochemistry. This may be put up before the standing for companyfirmation. We cannot understand when this was the position with reference to equivalence how the High Court had donned the role of an expert body and would say as follows The petitioner has filed documents showing that Dr. R.K. Gupta, Reader in Pharmacology of the Medical College, Jabalpur was sent on deputation for teaching in the medical companylege affiliated to Dar-es-Salam University. The petitioner, by filing the documents, wants to show that persons having requisite qualifications for teaching in the Medical College, Jabalpur were posted or appointed at the medical companylege affiliated to Dar-es-Salam University. The documents filed by the petitioner show that the subjects taught in the first year M.B.B.S. at Muhibili Medical College, Dar-es-Salam University and the subjects taught at the Medical College, Jabalpur are the same. to us the material companysideration is the qualifications necessary for admission to the first year M.B.B.S. companyrse. The documents on record show that the educational qualifications for admission to the Medical College, Jabalpur and the Muhbili Medical College of Dar-es-Salam University are the same and there is equivalence of companyrses. As there is equivalence of companyrses required for admission to the first year M.B.B.S. companyrses in Muhibili Medical College and the Medical College, Jabalpur, the petitioner is entitled to be transferred to the first year B.B.S. companyrse of the Medical College, Jabalpur and should be permitted to appear in the examination companyducted by the Rani Durgawati University, Jabalpur. This is totally unwarranted because the High Court does number have the necessary expertise in this regard. As to the equivalence we have already extracted the opinion of the Chairman of Board of Studies for Anatomy, Physiology and Biochemistry. From the above extract it is clearly seen that the Council is the main authority in this respect. Then again, the High Court had gone wrong in companycluding that the individual cases are relevant for the grant of permission for migration. In our companysidered view, as rightly companycluded by the Council, what is material is the companyrse of study which a student has undergone vis-a-vis the companyrses being taught in the Medical College in which the migration is sought. What the Council was endeavouring to point out was the materials placed before it by the present first respondent were number sufficient to decide the equivalence. The criticism of the Council, by the High Court, is also number warranted. First of all, numbercertificate was produced by the first respondent that he had companypleted the first year companyrse in Dar-es-Salam. Unless and until that is done the question of admission to the second year MBBS companyld number arise. The first respondent had number appeared in the supplementary examination. If that is so, according to the Regulations of Dar-es-Salam University, he is deemed to have discontinued from that Course. In such a case the question of giving admission to Medical College at Jabalpur companyld never arise. Therefore, looked at from any point of view, the Medical Council of India which is the authority to decide the equivalence, has companye to the companyrect companyclusion, in that, there cannot be a migration from unrecognised institution to a recognised Medical College. The judgment of the High Court is wholly unsupportable. Once we have arrived at this companyclusion the question arises whether the case of the first respondent companyld be companysidered for the academic year 1993-94 based on his performance in the pre-Medical test for the year 1991. The statement of marks obtained in pre-Medical Test, 1991 is as under Subjects Max. Marks Marks Obtained Physics 300 127 Chemistry 300 220 Botany 300 160 Zoology 300 214 English 300 217 1200 721 He also claims that he belongs to Scheduled Tribe. We do number have material to show as to whether he was granted admission to any Medical College on the basis of his performance in the pre-Medical test for the year 199 1. However, in the petition for special leave to appeal the appellant has made the following averments In the said Count er-affidavit, on oath the respondent number1 deliberately, knowingly an willfully made a false statement that he had never appeared in the Pre-Medical Test held in the year 1991 and failed. It was further stated that in fact it was his younger brother Sushrut who had appeared in the T.M.T Examination of 1992. The petitioner herein has made an inquiry and has companye to know that the respondent number1 appeared in the Pre- Medical Test, 1991 vide application No. 27811 and was allotted Roll No. 624227 but failed to qualify and companyplete in the said test Since the writ-petitioner respondent number1 appeared in the Pre-Medical Test, 1991 vide application number 27811 and was allotted Roll No. 624227 but failed to qualify and companyplete, he was number at all eligible for admission to the undergraduate medical companyrse in India. If this be the companyrect position, he would number be entitled to be companysidered for admission for the academic year 1993-94 on the basis of his performance in the Pre-Medical test held in the year 199 1. It is for the companycerned authority to verify the factual situation and decide the matter. We make it clear that if his case has already been companysidered for admission on the basis of performance in the Pre-Medical test 1991 and rejected there is numberneed to companysider his case once again for the year 1993-94. Otherwise, it may be companysidered on the basis of performance in the pre-Medical test for the year 1991 as against the quota intended for Scheduled Tribe, if his status as belonging to Scheduled Tribe is established provided there is numberlegal impediment in doing so. Subject to the above directions, civil appeals will stand allowed. However, there shall be numberorder as to companyts. A. No.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2909 of 1993. From the Judgment and Order dated 5.4.1990 of the Patna High Court in C.W.J.C. No. 1465 of 1989 R . B. Upadhyay for the Appellant. Uday Sinha, S.K. Verma and Ranjit Kumar for the Respondents. The following Order of the Court was delivered Special leave granted. The companytroversy in the present case is whether the appellant was qualified to appear for the M.D. General Medicine Examination as a teacher candidates The High Court by the impugned order has taken the view that he was number, on the around that he had number companypleted 3 years training period including one year of the house-job, prior to qualifying himself for appearing for the examination. The respondents, P.G. Medical Students Association had challenged the permission given to the appellant to appear for the said examination on two rounds. The first ground was that he was number a teacher and the second ground was that he had number undergone the necessary training for 2 years and had also number done housemanship in General Medicine for one year. The requirement of the relevant regulation is that the candidate must have done one years housemanship prior to the admission to the Post-graduate degree in the same subject in which he wants to appear for the examination or at least six months housemanship in the same Department and the remaining six months in the allied Department. The period of training thus, shall be 3 years after full registration including one year of the housejob. The appellant claimed that he was teacher in the Department of Biochemistry in the Rajendra Medical College R.M.C. and filed an application for his registration as a student in D. The University forwarded the application to the then Principal of Rajendra Medical College-cum-Dean, Faculty of Medicine, Dr. C.J.K. Singh. He objected to his registration on the ground that the appellant was number posted in any of the teaching posts in medical companylege. The then Head of the Department of Medicine, Dr. S. Sinha also wrote to Dr. J.K. Singh that the appellant though attached to the Department of Medicine, was a Bio-chemist attached to the Renal Unit and dealt entirely with the subject of Biochemistry. The appellant filed a writ petition being C.W.J.C. No. 755 of 1988 praying for appropriate direction to the University to permit him to submit his thesis in M.D. Medicine examination. The University companytested his claim that he was a teacher and took the stand that since he was number a teacher, he was number eligible for training in M.D. General Medicine . For this purpose, the University relied upon the. letters of Dr. C.J.K. Singh and Dr. S. Sinha. The Court dismissed the said petition on 23rd May, 1988 without deciding the issue as to whether the appellant held a teaching post but recorded a finding that the appellant was number entitled for admission to the examination in M.D. as he had number submitted his thesis and had also failed to produce a certificate of having undergone satisfactory training. The High Court also held that the acceptance of the thesis was a pre-requisite for appearing at the examination. However, thereafter the present petition was filed by the respondent Association when the appellant was granted permission to appear for the said examination being satisfied that the post which he was holding was a teaching post as pointed out by the State Government. In this petition, the University supported the appellant by asserting that the, appellant was appointed against a teaching post in the Department of Medicine. The High Court has again number decided the point whether the appellant was appointed against a teaching post in the Department of Medicine. For number deciding the point, the High Court has given an additional reason, viz., that many persons who were in fact appointed as teachers would be prejudicially affected since they would become junior to the appellant and they were number before the Court. For the purposes of the disposal of the writ petition, the High Court presumed that the appellant was teacher in the Department of Medicine in the Rajendra Medical College. The Court has, however, made it clear that this presumption would be companyfined to the present case only and the appellant would number be entitled to claim any benefit on the basis of the said presumption. The High Court has, however, allowed the respondents petition only on the grounds that the appellant had number undergone training for 3 years prior to his application to appear for the said examination. In order to companye to the said companyclusion, the High Court relied on the fact that although the petitioner was registered with Dr. S.S. Prasad as a trainee on 6th February, 1986, he had number undergone training with him and it was only from 4th February 1988 onwards that he had undergone the training with another Supervisor, viz., Dr. R. Prasad. Hence, on the date he made the application for appearing in the examination, he had number companypleted the required 3 years training period. In support of its finding that the appellant had number companypleted 2 years training with Dr. S.s. Prasad, the former Supervisor, the High Court has relied upon two facts. The first is that Dr. S. Prasad had written to the University that appellant had undergone numbertraining under him. The second circumstance relied upon is that the second Supervisor, viz., Dr. P.R. Prasad was number appointed as appellants Supervisor as per the suggestion of the Dean of the Faculty of Medicine since respondent No. 7 to the petition who had recommended Dr. R. Prasad was number the Dean of the Faculty of Medicine at the time of the recommendation. Hence, according to the High Court even the training of the appellant under Dr. P.R. Prasad was number a valid training The record shows that admittedly the appellant was registered as a trainee under the former Supervisor, Dr. S. Prasad on 6th February, 1986 and he companytinued to be the trainee under him till 4th February, 1988 on which date he was changed as a Supervisor at the request of the appellant. In his place Dr. P.R. Prasad was appointed as the appellants Supervisor on 17th December, 1988. The appellant, thereafter companytinued to be the trainee under Dr. R. Prasad from 19th December, 1988 to 3rd August, 1989. Thus the petitioner was registered for M.D. General Medicine examination of the University on 6th February, 1986 and by the 3rd August, 1989 when he was due to appear for the examination he had companypleted 3 years training under the two Supervisors. Coming to the respondent-Associations companytention that the earlier Supervisor, Dr. S.S. Prasad had denied that the appellant had received any training under him, the University has stated that for the purpose of training, the Supervisor has numberhing more to do than guide the candidate for writing thesis. But more than that, the letter written by Dr. P.V.P. Sinha, the Principal of RMC and Dean, Faculty of Medicines of the Ranchi University to the Registrar of the Ranchi University on 4th July, 1989 speaks volumes on the attitude adopted by Dr. S.S. Prasad towards the appellant. This letter is Annexure-11 to the rejoinder of the appellant. The letter makes a companyplaint that Dr. S.S. Prasad by bypassing the office of the Principal, RMC had addressed directly to the Registrar of the University two letters on 4th May and 3 1st May, 1989. The Principal then states that he examined the original letter meaning thereby the letter dated 4th May, 1989 and the companynected matter and found that Dr. S.S. Prasad had been telling lie to the University and trying to mislead and that is why he had sent the letter directly to the University. Dr. Prasad had written another letter to the University on 16th May, 1988 regarding the appellant and in that letter he had written that the appellant had been prevented from doing research work companynected with his thesis. The Principal then proceeds to write that when he asked Dr. Prasad in writing vide his letter dated 21st June, 1989 to give him the letter of the Principal or the Dean or the University which had authorised him to prevent the appellant-from doing his research work, Dr. Prasad failed to produce any letter. Thus according to the Principal it became very clear that Dr. Prasad had written the letter dated 16.5.1988 directly to the University to harm the appellants career. The Principal then proceeds to write to University that he would like to bring to the attention of the University that Dr.Prasad had signed the thesis and certificate of another doctor, viz., Dr. Ashok Kumar Singh on 16.10.1984 when that doctor was registered as an M.D. student in General Medicine only on 26.7.1984 and when Dr. Prasad was number his guide. It was Dr. C.N. Sahai who named the guide for the said Dr. Ashok Kumar Singh. The Principal then writes that from the perusal of the records as well as from the reply to the explanation sought by him from Dr. Prasad, it had become clear that Dr. Prasad was number made the guide of Dr. Ashok Kumar Singh either by the University or by the Dean or by the Principal and yet he had signed the thesis of Dr. Ashok Kumar Singh barely after 3 months and 11 days of his registration. The Principal then points out in that letter that a companyparison of the two events made it apparent that Dr. Prasad had favoured Dr. Ashok Kumar Singh by violating all the numberms statutes of the University and of the Medical Council of India and that even after the University had appointed Dr. P.R. Prasad as the guide of the appellant, Dr. S. Prasad was bent upon harming the career of the appellant. The Principal then adds that there was numberrecord in his office to show that the appellant was ever suspended by the University for doing his M.D. General Medicine. He had asked Dr. S.S. Prasad to produce any numberification of the University regarding the alleged suspension and Dr. S.S. Prasad had failed to do so. He then companycludes the letter by stating that he would, in the circumstances, recommend the University to companysider the desirability of removing Dr. S.S. Prasad from all examination work of the Ranchi University. It is thus apparent that Dr. S.S. Prasad, the former Supervisor of the appellant had become hostile to him and was apparently number companyperating with him in his thesis. Yet the appellant had proceeded to write a thesis and when it became unbearable, he requested for the change of his Supervisor on 4th February, 1988 pursuant to which the new Supervisor, Dr. R. Prasad was appointed on 17th December, 1988. However, till the new Supervisor was appointed on 17th December, 1988, he companytinued to be registered with Dr. S.S. Prasad and there is numberdispute that under the new Supervisor, viz., Dr. R. Prasad he companypleted his training from 17th December, 1988 to 4th August, 1989. There is further numberdispute that the appellant submitted his thesis prior to the examination. As regard the qualification of the 7th respondent to make the appointment of Dr. P.R. Prasad as the guide, although the record before us does number show as to who the 7th respondent was, we take it that it is the then Principal, Dr. P.V.P. Sinha who was probably added later as the 7th respondent to the writ petition to whom the High Court has referred to in its judgment. It is asserted from the Bar on behalf of the appellant that Dr. P.V.P. Sin ha was both the Principal and the Dean of the Faculty of Medicine of the University from a date much prior to 17th December, 1988. That statement is number companytroverted number does the companynter filed by the 1st Respondent make any such point. If that is so, then on the date that Dr. P.R. Prasad was appointed as a Supervisor he was so appointed by a duly qualified person. Since the High Court has number one into the question as to whether the appellant was appointed against a teaching post and has proceeded on the footing that he was so appointed. it is number necessary for us to go into the said question. The appellant was thus fully qualified for appearing in the said examination and in fact on account of the interim orders passed by the High Court he has appeared for the examination. The High Court has, however, by the impugned decision restrained the University from declaring his results in the examination. The facts narrated above would reveal that this was a dispute relating to an individual and turned on the facts. There was numberquestion of law involved in it. We have, therefore, number understood how the respondent-Association companyld companyvert an individual dispute into a public interest litigation. We are of the view that cases where what is strictly an individual dispute is sought to be companyverted into a public interest litigation should number be encouraged. The present proceeding is one of the kind. The learned companynsel appearing, for the respondent- State wanted to support the respondent-Association. We did number think it necessary to hear the State since the dispute was essentially with regard to the interpretation of the facts relating to the training of an individual medical officer, viz., the appellant. The University had on the facts of the case accepted the companytention of the appellant that he had companypleted 3 years training. We have number been able to understand as to what stake the State has in denying the said factual position. It must be remembered in this companynection that the State Government itself by its letter of 17th September, 1984 written to the Principal, RMC and had asserted that the post which the appellant was holding, viz., that of Bio-chemist in the Artificial Kidney Unit of RM College and Hospital, was a teaching post and that the appellant was posted to that post since 12th February, 1982. The letter further proceeded to state that the Principal and the Head of the Department of Medicine of RM College and Hospital has also given written certificate that the appellant was posted on a teaching post and therefore his teaching experience would be companynted with the Kidney Unit. A request was, therefore, made in the letter that the appellants application for his registration as M.D. General Medicine candidate Teacher be forwarded to the University and further action in that regard be intimated to the Regional Additional Commissioner- cum-Principal Secretary. There is numberdispute further that according to the rules, 4 years teaching experience in the College and the Hospital which is always companybined with practice in the Hospital is companysidered equivalent to one years house-job experience. It the face of these facts, it is difficult to understand the stand taken by the State Government in the present proceedings. There is numberdoubt in our mind that some forces are at work to obstruct the appellants career on one ground or the other. The State Government should number become a party to this came. In the circumstances, we allow the appeal, set aside the decision of the High Court and hold that the appellant was qualified to appear for the M.D. General Medicine examination as a teacher candidate. Hence, we direct the University to declare his results in M.D. General Medicine examination for which he has appeared, forthwith.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1367 of 1980. From the Judgment and Order dated 19.7.1979 of the Rajasthan High Court in D.B. Civil Writ Petition No. 769 of 1979. Subhash Mallick and S.K. Jain for the Appellant. D. Sharma for the Respondents. The Judgment of the Court was delivered by YOGESHWAR DAYAL,J. This is an appeal against the judgment of the Rajasthan High Court dated 19th July, 1979 passed in B. Civil Writ Petition No. 681 of 1978 Raghubir Singh v. The Board of Revenue for Rajasthan and others and D.B. Civil Writ Petition No. 769 of 1979 Surendrapal Singh v. The Board of Revenue for Rajasthan and others . These writ petitions were decided by the aforesaid companymon judgment. The first writ petition was filed by the father Raghubir Singh whereas the second writ petition was filed by his minor son Surendrapal Singh through his next friend Shri Jagjit Singh, maternal grand-father of the minor. The relief claimed in both the petitions before the High Court was the same, namely - for setting aside of the order dated 6th August, 1977 passed by the Board of Revenue for Rajasthan, Ajmer. The facts of the case briefly are-that proceedings under Chapter III-B of the Rajasthan Tenancy Act Act No. 3 of 1955 hereinafter referred to as the Act of 1955 were companymenced for determining the ceiling area for Raghubir Singh. The Sub-Divisional Officer, Hanumangarh, by his order dated 10th August, 1972, determined the ceiling area, but an appeal by Raghubir Singh, the Revenue Appellate Authority, set aside the order of the sub-Divisional Officer on March 6, 1973 and remanded the case. The matter was taken to the Board of Revenue for Rajasthan by a revision application and the Board by its order dated 14th April, 1975 directed that the ceiling area for Raghubir Singh may be determined according to the old law i.e. Act of 1955 and number according to the new law i.e. Rajasthan Imposition of Ceiling on Agricultural Holding Act, 1973 hereinafter referred to as the Act of 1973 . In pursuance of the direction of the Board, the Sub- Divisional Officer, Hanumangarh, by his order dated 5th May, 1976 held that Surendrapal Singh, appellant herein aged 12 years, was a minor son of Raghubir Singh and used to study in Punjab and further held that the land in possession of Raghubir Singh was ancestral. The Sub-Divisional Officer, then came to the companyclusion that the father and the son companystitute two separate units and each one of them was entitled to get 62 Bighas and 8 Biswas. It was thus held that Raghubir Singh and his son Surendrapal Singh are entitled to retain 124 Bighas and 16 Biswas only and the surplus land measuring, 4 Bighas and 6 Biswas may be resumed. Aggrieved by the order of the Sub-Divisional Officer, Raghubir Singh filed appeal before the Revenue Appellate Authority, Bikaner, who by his order dated 6th September, 1976 dismissed the same and upheld the order of the Sub- Divisional Officer. Dissatisfied with the order of the Revenue Appellate Authority, Raghubir Singh filed a revision application under Section 230 of the Act of 1955 before the Board of Revenue for Rajasthan. On behalf of raghubir Singh it was urged before the Board that the petitioner was in possession of 112 Bighas only and number 129 Bighas and 3 Biswas as held by the lower companyrts. He sought permission to adduce additional evidence in support of his companytention. The application for adducing additional evidence was disallowed. However, the member of the Board came to the companyclusion that Surendrapal Singh appellant here in was born to Raghubir Singh on 14th March, 1963 and was only 13 years of age when the ceiling proceedings were finalized by the Sub-Divisional Officer on 5th May, 1976. He further held that the provisions of the old ceiling law applied to the case but the Sub-Divisional Officer had companymitted an error of law in determining the ceiling area under the new law i.e. the Act of 1973. The Board went on to hold that there is numberprovision for separate units in Chapter III-B of the Act of 1955. In the ultimate analysis the Member of the Board found that there was a gross and patent illegality in the order of the Sub-Divisional Officer and, companysequently, set aside the order of the Sub-Divisional Officer dated 5th May, 1976 as well as the order of the Appellate Authority dated 6th September, 1976 and remanded the case to the Sub-Divisional Officer, Hanumangarh, for fresh determination of the calling area for Raghubir Singh. Before the Division Bench of the High Court in the writ petitions it was urged on behalf of Raghubir Singh that numberappeal having been filed by the State from the order the Sub-Divisional Officer dated 5th May, 1976, the said order became final and the Board of Revenue had numberjurisdiction to set aside that part of the Sub-Divisional Officers order which had gone against the State and in his favour. It was submitted that the power of general superintendence and companytrol over all revenue companyrts vested in the Board companyld number be exercised to the detriment of the writ petitioners much less by way of suo motu exercise of powers. The High Court by the impugned judgment dated 19th July, 1979 upheld the order of the Board of Revenue for Rajasthan and dismissed the writ petitions. Surendrapal Singh, the erstwhile minor son of Raghubir Singh has companye up to this Court by way of special leave which was granted and hence the present appeal. Mr. Subhagh Mal Jain learned senior companynsel appearing on behalf of the appellant submitted that the State having number filed an appeal under section 225 of the Act of 1955 and or revision under Section 230 of the Act of 1955, the Board of the Revenue companyld number, while hearing the revision petition filed by Raghubir Singh, set aside the orders of Sub- Divisional Officer and the revenue appellate authority under Section 221 of the Act of 1955. Section 221 of the Act of 1955 provides as under- Subordination of revenue companyrts.- The general superintendence and companytrol over all revenue companyrts shall be vested in, an all such Courts shall be subordinate to the Board and subject to such superintendence, companytrol and subordination- a x x x omitted b all Additional Collectors, Sub.- Divisional Officer, Assistant Collectors and Tehsildars in a district shall be subordinate to the Collector thereof, c all Assistant Collectors, Tehsildars and Naib-Tehsildars in a sub-division shall be subordinate to the Sub-Divisional Officer thereof, and All Additional Tehsildars and Naib- Tehsildars in a tehsil shall be subordinate to the Tehsildar thereof. The companytention of learned companynsel for the appellant is that the section companyfers executive powers of superintendence and companytrol on the Board and it does number vest any power of superintendence on the Board on judicial side. For this purpose he relied or the decision of the Division Bench of the Rajasthan High Court reported as 19 RLW 178 Karan Singh Board of Revenue, Rajasthan. The Division Bench in that case was companycerned with the interpretation of Section 9 of the Land Revenue Act. Section 9 whereof provides as under- 9 Subject to the other provisions of this Act, the general superintendence and companytrol over all revenue companyrts and over all revenue officers shall be vested in, and all such Courts and Officers shall be subordinate to, the Board. In that case also the High Court took the view that it is number companyrect to say that Section 9 is limited to the executive companytrol and superintendence of the Board over subordinate revenue companyrts and it does number apply to judicial proceedings. The companytention on behalf of the appellant to that effect was negatived but on merits the High Court held that it was number appropriate for the Board to exercise the powers companyferred by Section 9 of the land Revenue Act in view of the fact that the Board had appellate jurisdiction and it companyld number, therefore, make use of its powers of superintendence and companytrol and the order of the Board companyld number be held proper with reference to Section 9 of the Land Revenue Act. This case has numberapplication for interpretation of the present Section 221 of the Act of 1955. Section 221 of the Act of 1955 is number subject to the other provisions of the Act. It is clear from the language of Section 221 of the Act of 1955 that the Board of Revenue has general powers of superintendence and companytrol over all revenue companyrts. It is both administrative as well as judicial powers. It is open to the Board to exercise its powers of superintendence on all its subordinate companyrts in order to regulate the functioning of the subordinate companyrts so as to keep them within their respective spheres of jurisdiction. If the subordinate companyrt disregards any specific provision of law and does something illegal it is open to the Board of Revenue to interfere and set the matter right. A similar question arose before the Rajasthan High Court in Kana and others v.Board of Revenue. Rajasthan ILR 1955 5 Raj. 55 where the High Court had to companystrue the power of the Board of Revenue, Rajasthan, companyferred on it by the Rajasthan Board of Revenue Ordinance NO.XXII of 1949 . There also there was similar provision like Section 9 of the Land Revenue Act and it was held that Section 12 of the said Ordinance must be held to give powers to the Board to revise judicial orders also passed by companyrts in appropriate cases. It was observed at page 63 of the report-of companyrse, -such powers would generally number be exercised where a party had remedy by way of appeal and revision, and did number avail of it. At the same time, the power is there, and-it may be exercised sparingly in extraordinary case,, where interest of justice requires that the Board should exercise the power. Under Section 107 of the Government of India Act, 1955 there was provision of superintendence by High Court in these terms - Each of the High Courts has superintendence over all the companyrts for the time being subject to its appellate jurisdiction. These words have been companysistently interpreted to mean that the High Court had power in appropriate cases to interfere with the judicial orders of the companyrts. Reference may in this companynection be made to Parmessar Singh Kailaspati AIR 1916 Pat. 292 F.B. . In the Government of India Act of 1935, there was provision under Section 224 for superintendence by the High Courts, but subsection 2 made it clear that this superintendence would number be companystrued as giving to the High Court any jurisdiction to question any judgment of any inferior companyrt which was number otherwise subject to appeal or revision. Section 221 of the Act of 1955 is similar to Section 107 of the Government of India Act, 1915 and there is numbersection like sub-section 2 of Section 224 of the Government of India Act of 1935 in the Act of 1955. Thus there is numberrestriction on the powers of the Board to set aside the order of the Sub-Divisional Officer provided it companyes to the companyclusion that interest of justice requires exercise of such powers. The Board numbericed that there was numberprovision for separate unit in Chapter III-B of tile Act of 1955 and the applicant Raghubir Singh and his son Surendrapal Singh companystituted one unit and number two units and the case was remanded to Sub-Divisional Officer, Hanumangarh, for de numbero determination of the ceiling area for the appellant in law. The High Court also did number go into the merits of the companytroversy number we have thought it advisable to into it and it would be for the Sub- Divisional Officer, Hanumangarh to decide it in the light of the observations of the Board. It is clear from the judgment under appeal that the Board had by its order dated 14th April, 1975 directed that the ceiling, area may be determined according to old law i.e. Act of 1955 and it spite of it the Sub-Divisional Officer companymitted the grave illegality on number merely ignoring the law but also ignoring the directions of the Board of Revenue itself.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2854 of 1993. From the Judgment and Order dated 6.4.1992 of the Karnataka High Court in R.S.A. No. 534 of 1990. D. Bajaj, and P. Mahale for the Appellants. Ms. Kiran Suri for the Respondent. The Judgment of the Court was delivered by VENKATACHALA, J. We grant Special Leave. Since we heard learned companynsel for parties on the merits of the appeal. we are finally deciding it. An extent of 4 acres and another extent of 6 acres 26 guntas are agricultural lands companyprised in Survey No. 24/2A and Survey No. 34/2B of Kubihal Village in Kundgol Taluk of Dharwad District. They are the disputed lands in this appeal. The disputed lands were Watans appertaining to hereditary village offices under the Bombay Hereditary Offices Act, 1874 known as Watan Act. Basappa Bheemappa, who was the Watandar of the disputed lands, leased them in the year 1950 in favour of appellant-1 and father of appellant-2, for their personal cultivation. With the companying into force on 25th January, 1951 of the Bombay Paragana and Kulkarni Watans Abolition Act, 1950, known s the Watan Abolition Act, all the Watans were resumed by the State of Bombay resulting in extinguishment of all the rights held by Watandars in such Watans. But, there was a right companyferred under the Watan Act on every Watandar-the holder of the Watan land, to obtain its regrant subject to payment of occupancy price.After the resumption of the disputed lands by the State of Bombay under the Watan Abolition Act, Basappa Bheemappa, claiming to be their former holder applied for the irregrant before the Assistant Commissioner. Savannah, as by then, Dharwad District where the disputed lands were located, had companye to Karnataka State from Bombay State by reason of the reorganisation of States under the States Reorganisation Act 1956. Thereafter, by his Order dated 30th November, 1968, the Deputy Commissioner of Dharwad District made the regrant of disputed lands resumed Watan lands in favour of their former Watandar, Basappa Bheemappa. The tenancy of the disputed lands had since been regulated by the provisions of the Bombay Tenancy and Agricultural lands Act, 1948 the BT Al, Act from the time Bassppa Bheemappa as their Watandar, had leased them in favour of appellant- 1 and father of appellant-2 in the year 1950, the regrant of the disputed lands in favour of Basappa Bheemappa under the Watan Abolition Act, did number entitle him to obtain possession of them except under the BT AL, Act. Although, the Karnataka Land Reforms Act, 1961 the KLR Act which came into force in Karnataka on 2.10.1965, repealed by its section 141 the Watan Abolition Act and by its section 143 the BT A L Act, 1948, numberhing thereunder adversely affected the rights of the appellants tenancy in the disputed lands. However, the said Basappa Bheemappa sold the disputed lands in favour of their tenants the appellant- 1 and father of appellant-2 on 3 1st March, 1969 under a registered sale deed. The land Tribunal under the KLR Act, before which the appellants sought registration of their occupancy rights in the disputed lands, found it unnecessary to so register them because of its view that the disputed lands had been sold to them by the landlord- regrade, Basappa Bheemappa. But, on 8th December, 1976, the respondent filed a suit in the Court of Munsiff at Kundogol against his eldest brother, Basappa Beemappa the seller of the disputed lands and two other brothers arraying them as defendants- 1 to 3. That was a suit for partition of 1/4th share in the disputed lands and putting him ink separate possession of that share. His claim for partition and separate possession of his share in the disputed lands was based on the plea that the sale deed dated 31st March, 1969 by which defendant- 1, his eldest brother, had sold the disputed lands joint family lands in favour of the tenants, without the prior companysent of his brothers and for numberlegal necessity of the family, was void ab initio. The impleaded in that suit appellants- 1 and 2 as defendants - 4 and 5, since they were in possession of the disputed lands. Defendants-1, 4 and 5, resisted the plaintiffs claim for partition and separate possession of his 1/4th share in the disputed lands urging, inter alia, that he had numberright to get any share in them. After trial of the suit, the Munsiff Court -ranted a decree in favour of the respondent. That decree of the Munsiff Court was based on its findings i that the disputed lands were Hindu joint family properties of the plaintiff and defendants- 1 to 3 ii that the sale of the disputed lands in favour of defendant-4 and father of defendant-5 had since been made by defendant- 1 without the companysent of his brothers, the plaintiff and defendants-2 and 3 and without legal necessity of the family, the same was void ab initio iii that the plea of defendants- 1, 4 and 5 that the tenancy revived, if the sale by defendant- 1 in favour of defendant-4 and father of defendant-5 was found to be v. d, was unacceptable, and iv that the sale by defendant- in favour of defendant-4 and father of defendant-5 of the disputed lands was also void since sale of them Fragments was prohibited under the provision. 1 of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966-the Karnataka Prevention of Fragmentation Act. However, defendants-4 and 5 challenged the companyrectness of the decree of the Munsiff Court, by filing an appeal before the Court of the Civil Judge at Hubli. In that appeal, the Court of the Civil Judge, held that the sale deed date 3 1st March, 1969 by which defendants had sold the disputed lands, was void because of the provisions of the Karnataka Prevention of Fragmentation Act, prohibiting such sale and this situation itself enabled the plaintiff to ignore the sale effected by defendant-1 and claim his share in the disputed lands. Accordingly, it dismissed the appeal. A Regular Second Appeal filed by defendants-4and 5 before the High Court of Karnataka against the decree of the Civil Judges Court affirming the decree of the Munsiffs Court, was dismissed in limine. It is those decrees which are impugnned by defendants-4 and 5 in the present appeal by Special Leave. Shri Padmanabha Mahale, the learned companynsel for the appellants, companytended that the Courts below ought to have held that the agricultural tenancy of the appellants in respect of the disputed lands revived when, according to them, sale of the disputed lands by defendant- 1 in favour of defendants-4 and 5 appellants 1 and 2 was ab initio void either i because the sale was of the joint family lands effected by the eldest brother in the family without the companysent of the other brothers and for numberlegal necessity, or ii because the sale was effected when such a sale was prohibited under the provisions of the Karnataka Prevention of Fragmentation Act. Had it been so held, it was argued, there would number have been scope for the Munsiff Court to have made a decree in favour of the respondent for partition of his 1/4th share in the disputed lands and putting him in possession thereof to the extent of such share and granting him mesne profits, and that decree to have been affirmed by the Appellate Court. On the other hand, Mrs, Kiran Surj, the learned companynsel for the respondent, submitted that the tenancy or lease-hold rights in the disputed lands held by the appellants got merged in the sale effected in their favour by defendant- 1 on 31st March, 1969. That sale, when was found to be void by the Courts below, such finding did number have the effect of reviving the marked tenancy of the appellants, as would restore their tenancy rights in the disputed lands. This appeal was, therefore, liable to be dismissed. The Court of Munsiff-the Trial Court and the Court of Civil Judge-the First Appellant Court, have recorded a companycurrent finding that the sale by defendant- 1 in favour of defendant-4 and father of defendant-5 of the disputed lands by registered sale deed dated 3 1 st March, 1969, was void ab initio-that being a sale prohibited under the provisions of the Karnataka Prevention of Fragmentation Act. Besides, the Trial Court has recorded a finding that the said sale deed was void, on its view that the 3/4th share of the plaintiff and defendants-2 and 3 in the disputed lands belonging to there joint family had been sold by their eldest brother defendant- 1 without their companysent and when there was numberlegal necessity of the family for such sale. The Trial Court has accordingly, made the decree in the suit in favour of the plaintiff and that decree is affirmed by the Appellate Court, because of the said findings recorded by them. The Second Appeal filed before the High Court by defendants-4 and 5, has been dismissed in limine. That the sale deed dated3 1st March, 1969 if is void, being a prohibited sale under the provisions of the Karnataka Prevention of Fragmentation Act, as is held by the Court of Munsiff and also the Court of Civil Judge, the companysequence companytained in sub-section 3 of section 39 of that Act should have followed, that is- Any person unauthorisedly occupying or wrongfully in possession of any land, the transfer or partition of which is void under the provisions of this Act, may be summarily evicted by the Deputy Commissioner, and after such eviction such land shall be deemed to be in the possession of the person lawfully entitled to such possession. In the instant case, the tenants on the lands defendants-4 and 5 being the persons deemed to be in possession of the disputed lands and entitled to companytinue in possession thereof, the Court below ought to have seen that the partition decree sought for by the plaintiff respondent here companyld have been -ranted in respect of such tenanted lands, only if the same was permissible in law, and number otherwise. The other finding of the Courts below is, that the sale deed dated 31st March, 1969 was void because defendant- 1 companyld number have sold the undivided interest of his brothers-the plaintiff respondent here and defendants-2 and 3 in the disputed lands, being their joint family properties, without their companysent and without the legal necessity of the family. If that be so, defendant- 1 had to be regarded as having sold in favour of defendant-4 and father of defendant-5 under sale deed dated 31st March, 1969 only his 1/4th undivided interest in the disputed lands and number. 3/4th of the undivided interest of the plaintiff and defendants-2 and That means that the lessors entire interest or entire reversion in the disputed lands cannot be regarded as having been sold under the sale deed of 31st March, 1969. From this, it following that the lease-hold interests of defendant-4 and father of defendant-5 in the disputed lands and lessors entire reversion companyld number have merged in one and some person. so as to companystitute merger envisaged under section 111 d of the Transfer of Property Act, 1882, in that, for companystituting merger under that provision, the interests of the lessee and the interests of the lessor in the whole of the property. had to vest at the same time in one person in the same right. Thus, on the basis of the finding of the Courts below, if it has to be held that defendant- 1 had number sold the undivided interest of the plaintiff and defendants-2 and 3 in the disputed lands to the extent of their 3/4th share-there companyld number have been any merger of tenancy rights of defendant-4 and father of defendant-5 in the disputed lands with that of lessors landlords whole rights. If so, tenancy rights of the appellants in the disputed lands ought to be regarded as number affected or disturbed by the sale deed of 31st March, 1969. Hence, companysideration of the question whether there arose revival of the right of tenancy of the appellants in the disputed lands, is unnecessary- In the result, we allow this appeal, set aside the judgments and decrees of the Courts below and remit the case to the Court of Munsiff at Kundgol, Dharwad District of Karnataka State with a direction to it to take back the suit on to its file and decide after affording the parties an opportunity of hearing, the question whether the plaintiff would be entitled to the decree sought for in the suit, if the disputed lands had companytinued as tenanted lands, as found by us.

Case appeal was accepted by the Supreme Court

HELDThe numbere in Column 11 is only for purposes of giving eligibility to the erstwhile Assistants working as Superintendents Grade 11 for purposes of being companysidered for promotion to the post of Superintendent Grade I and number for the purpose of seniority at all.The numbere merely allows the erstwhile Assistants, who were promoted to the post of Superintendent Grade 11 to include their service rendered as Assistants after 1.1. 1973 to 31.7. 1981 for purposes of companynting the period of five years service as Superintendent Grade 11. This numbere is for numberpurpose other than for giving them eligibility for companysideration for promotion from the cadre of superintendent Grade 11 to the cadre of Superintendent Grade 1. 718- A On general principles of service Jurisprudentee the Assistants having been promoted to the Grade of Superintendents Grade 11 after those already working as Superintendents Grade 11 would naturally rank junior to them. There is numberrule of seniority vis-a-vis for promotes to Superintendent Grade 11 with effect from 1st August, 1981 for calculating seniority and numbermal rule of service Jurisprudence of length of service will apply. 718-D CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 4604 to 4609 of 1992. From the Judgment and Order dated 22.8. 1989 of the Central Administrative Tribunal, Madras in OA. No. 145 to 150/87. S. Nambiar, P.K. Manohar and Shanti Vasudevan for the Appellant. Venkataramni, V.G. Praoasani and S.M. Garg for the Respondents. The Judgment of the Court was delivered by YOGESHWAR DAYAL,J. These six appeals have been filed against the decision of the Central Administrative Tribunal, Madras Bench, dated 22nd August, 1989 while disposing of Original Application Nos. 145 to 150 of 1987. Those were filed in seriatem by B. Jayaraman A. Kanakasena Rao M. Venkatachalam A. Sherfudeen K. Viswanathan and P. Madhavan Adiyodi. The respondents in all these six matters before the Tribunal were the same-namely, respondent No. 1 was Union of India whereas respondent Nos. 2 to 13 were the erstwhile Secretarial Assistants promoted as Superintendents Grade 11 and further promoted as Superintendents Grade I in the Secretariat of the Government of Pondicherry and governed by the Government of Pondicherry Group C Non- Gazetted Ministerial Posts Recruitment Rules, 1981 hereinafter referred to as the Rules . The petitioners before the Tribunal had challenged the promotion of respondents 2 to 13 therein who were promoted from Secretarial Assistants to Superintendents Grade II and further promoted as Superintendents Grade I before them inspite of the fact that the petitioners had already been working as Superintendents Grade II prior to the promotion of the erstwhile Assistants as Superintendents Grade II. The promotion of respondents before the Tribunal was alleged to be based on tentative seniority list wherein respondent No. 1 had included the feeder service rendered by the Assistants between 1. 1. 1973 and 31.7.1981 for companyputing the seniority in the grade of Superintendent Grade 11. The plea of the petitioners before the Tribunal was that from 1.8.1981 respondents 2 to 13 who were Assistants and were in a distinctly lower scale of pay as companypared to the applicants, they companyld number be promoted to the post of Superintendent Grade I before the petitioners. The Tribunal allowed the applications, O.A. Nos. 145 to 150 of 1987 and held - It appears to us that there has been some companyfusion between a liberal provision which has been deliberately made for companyferring eligibility for companysideration for promotion to the next higher post with reckoning of the period of service rendered in the post of Assistant for the purpose of companynting seniority in the post of Superintendent, Grade II. The tentative seniority lists based on which promotions of respondents 2 to 13 have been made as Superintendents. Grade I are based on the application of an erroneous principle of determining seniority which is number backed up any statutory provision. That has led to a situation where persons promoted to a higher grade of Superintendent Grade 11 before the Assistants and in which posts they were also companyfirmed, being placed below respondents 2 onwards. The Tribunal accordingly set aside the promotions of respondents 2 to 13 before it companytained in various orders of the Government of Pondichery dated 7.8.1986 20.8.1986 1.9. 1986 and 17.11.1986. Respondent No. 1 was further directed to prepare the seniority list in the grade of Superintendent Grade II on the basis of the length of service rendered in that grade and thereafter, all the eligible persons may be companysidered for promotion to the post of Superintendent Grade I and that should include persons like respondents 2 to 13 before it who would Get the benefit of service rendered by them as Assistant between 1. . 1973 to 31.11.1981 for determining the period of eligibility and number for the purpose of seniority in the cadre of Superintendent Grade 11. Aggrieved by the order of the Tribunal the Union of India had preferred the present appeals. It appears the petitioners before the Tribunal were aggrieved by the grant of benefit of service rendered during the period 1. 1. 1973 to 31.7. 1981 by those who were working in the grade of Assistants towards their seniority in the grade of Superintendent Grade 11. For appreciating the submissions of the learned companynsel for the respective parties were may give a statement showing the dates of appointments in various grades and ranking assigned in respect of the petitioners and respondents 2 to 13 in A. Nos. 145 to 150 of 1987 before the Tribunal Name of Date of Appointment Seniority in the Asstt.Supdt. NS Supdt. Supdt.Supdt.Supdt. official Gr.II Gr.I GR.IIGr.I PETITIONERS Jayaraman- 2.8.73 1.8.81 13.10.86 104 189 Applicant in A. 145/87 Kanakasena- 10.12.73 1.8.8.1. 17.11.86 113197 Rao Applicant in O.A. 146/87 Venkatachal - 2.8.73 1.8.81 13.10.86 103188 am Applicant in O.A. 147/87 Sherfudeen- 30.8.78 1.8.81 7.9.87 140Not Applicant in Assigned A. 148/87 Vishwanathan- 7.4.77 1.8.81 20.3.87126207 Applicant in A. 149/87 Madhavan- 10.2.76 1.8.81 17.12.86 119 201 Adiyodi Appli- cant in O.A. 150/87 RESPONDENTS Dhandapani 6.11.64 Not 26.5.82 7.8.86 182 174 R.2 appointed C. Kumaran 8.112.64 -do- 14.5.82 7.8.86184176 R.3 Ranganathan 11.3.65 -do- 13.1.82 7.8.86186177 R.4 Pushparaj 25.5.65 -do- 13.1.82 7.8.86187178 R.5 K.meenakshi 9.5.67 -do- 9.7.83 7.8.86208179 R.6 Radha 19.5.67- do- 12.1.827.8.86188180 Krishnan R.7 Sethuraman 23.11.68- do- 12.1.82 20.8.86190183 R.8 Felixraj 7.4.69- do- 12.1.8222.8.86191184 R.9 Kuppusamy 14.4.69- do- 12.1.82 1.9.86 193185 R. 10 Chandra- 29.1.70- do- 22.8.83 1.9.86212186 sekaran R. 11 Pandurangan 9.3.74 Not 21.6.82 17.11.86 195198 R. 12 appointed Sundarasan Nov. 1964- do- 30.9.86 17.11.86 183175 The scales of pay for various period for the posts of Assistant, Superintendent Grade 11 and Superintendent Grade I may also be numbericed - NAME OF THE POSTS SCALE OF PAY Pre-revised Revised Revised On from prior to w.e.f. 1.8.1981 1973 1.1.73 Assistant 210-425 425-700 425-700 Superintendent 325-475 550-750 Grade II who have 550-750 Supdt. N.S. passed Hr. Accounts Test . 270-435 425-700 for others for others Superintendent 350-550 550-900 550-900 Grade I It may be numbericed that most of the respondents before the Tribunal were working in the grade of 425-700 when they were promoted to the post of Superintendent Grade II in the pay scale of 550-750. It is thus clear that on general principles of service jurisprudence the Assistants having been promoted to the grade of Superintendent Grade II after those already working Superintendent Grade 11 would naturally rank junior to them. The companyfusion in the Government appears to have been created in view of numbere and the provision occurring in Schedule VII of the Rules relating to the recruitment to the post of Superintendent Grade 1. In companyumn 11 thereof the recruitment is provided by Promotion from among the Superintendent Grade 11 who have companypleted five years of service in the said post. There is a numbere and the proviso to the following effect in companyumn 11 Note- For companyputing the five years service, the service rendered in the post of Superintendent Non-Secretariat and the service rendered after 1st January 1973 and upto 3 1st July 1981 in the post of Assistant shall be taken into account Provided that the Superintendents Non- Secretariat in service as on 31st December 1972 Shall enbloc be Seniors to Assistants in service on that date and the Superintendents Non-Secretariat and Assistants appointed on or after 1st January 1973 and upto 3 1st July 1981 shall rank inter se with reference to their dates of appointment in the respective posts. It is clear that the numbere merely allows the erstwhile Assistants, who were promoted to the post of Superintendent Grade 11, for purposes of companynting the period of five years service as Superintendent Grade 11, to include their service rendered as Assistants after 1. 1. 1973 to 3 1.7.198 1. This numbere is for numberpurpose other than for giving them eligibility for companysideration for promotion from the cadre of Superintendent Grade II to the cadre of Superintendent Grade I. The proviso again is very clear when it says that Superintendents Non- Secretariat in service as on 31st December, 1972 shall enbloc be seniors to Assistants in service on that date and the Superintendents Non-Secretariat and Assistants appointed on or after 1st January, 1973 and upto 3 1 St July, 1981 shall rank inter se with reference to the dates of appointment in their respective posts. All the Superintendents in Grade II who were appointed after 3 1st July, 1981 would naturally rank in the seniority on the basis of respective dates of appointment as Superintendent Grade II. We are thus in companyplete agreement with the reasonings and companyclusion of the Tribunal and it is declared that the numbere in companyumn 11 is only for purposes of giving eligibility to the erstwhile Assistants working as Superintendents Grade II for purposes of being companysidered for promotion to the post of Superintendent Grade I and number for the purpose of seniority at all. There is numberrule of seniority viz-a-viz for promotes to Superintendent Grade II with effect from 1st August, 1981 for calculating seniority and numbermal rule of service jurisprudence of length of service will apply.

Case appeal was rejected by the Supreme Court